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G.R. Nos. 138931-32. July 17, 2003




This is an automatic review of the Decision1 of the Regional Trial Court of Cabanatuan City, Branch 27, in Criminal Case No. 7966-AF, convicting appellant Joselito dela Cruz y Damaso of murder, sentencing him to suffer the death penalty and directing him to pay the heirs of the victim Romeo B. Domingo indemnity in the amount of P50,000 and actual damages in the amount of P56,607.

On December 22, 1997, an Information charging the appellant with murder was filed with the Regional Trial Court (RTC) of Cabanatuan City, docketed as Criminal Case No. 7966-AF, which reads:

That on or about the 19th day of December 1997, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery, did then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one ROMEO B. DOMINGO, by shooting the latter with the use of an unlicensed homemade shotgun, thereby inflicting upon him serious physical injuries which caused his death.

CONTRARY TO LAW.2cräläwvirtualibräry

Another Information was filed with the RTC, docketed as Criminal Case No. 7967-AF, charging the appellant with violation of Sec. 1, pars. 2 & 3 of Republic Act No. 8294 (Aggravated Illegal Possession of Firearm), which reads:

That on or about the 19th day of December, 1997, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, wilfully, unlawfully and feloniously have in his possession, control and custody one homemade shotgun, without first securing the necessary license to possess firearm from the Firearms and Explosive Division of the Philippine National Police, and said unlicensed firearm was used in committing the crime of Murder.

CONTRARY TO LAW.3cräläwvirtualibräry

The trial of the two cases was consolidated in the RTC, Cabanatuan City, Branch 27.

On January 19, 1998, the appellant, assisted by counsel, was arraigned and entered a plea of not guilty to both charges.

The Evidence of the Prosecution[4cräläwvirtualibräry

Romeo Domingo and appellant Joselito dela Cruz were not only neighbors but were also friends. Romeo called the appellant Pareng Lito. The latter had been to Romeos house at Barangay Bakodbayan, Cabanatuan City many times. The appellant worked in a mango farm owned by Jun Reyes, located about five hundred meters away from Romeos house. Rommel Domingo, Romeos ten-year-old son, was also acquainted with the appellant as the latter and his father had frequent drinking sprees in their house. Rommel called the appellant Kuya Lito.

At around 3:00 p.m. of December 19, 1997, Romeo arrived home, quite inebriated. He told his wife Leonora that he and Pareng Lito had a drinking spree. He then slept and had dinner at 5:30 p.m. He went to the sala and watched television. At about 6:30 p.m., Leonora, Rommel and his sister had dinner. Afterwards, Rommel joined his father who was watching the television program Mula sa Puso, while Leonora supervised her daughter in washing dishes in the kitchen. Rommel was seated at the third step of the stairs from the sala to the upper portion of their house, which was about half a meter away from his father. A 40-watt bulb illuminated the sala. The door of the house was open.

Rommel was startled when he heard a gunshot. He turned his head sideways and saw the appellant, armed with a handgun, about half a meter away from his father. Rommel was shocked to see his father fall to the floor, mortally wounded. The appellant then ran from the house through the door. Rommel rushed to his fathers side. Romeo told his son to take care of his mother, and that he was shot by Pareng Lito. Rommel ran after the appellant. As he was scrambling to escape, the appellant stumbled and fell. Rommel had a full view of the appellant before the latter stood up and fled from the scene. In the meantime, Leonora rushed to the sala when she heard the gunshot. She saw Rommel sprawled on the floor, bloodied all over. She embraced her husband, who told her that he was shot by his Pareng Lito.

Barangay Tanod Jose Mateo was on patrol when he heard the gunshot. He rushed towards the direction of the gunfire, which led him to the house of Romeo. Jose saw the owner of the house sprawled in the sala, already dead. He learned from Rommel, who by then had returned to the house, that it was the appellant who had shot his father. The barangay tanods, including the barangay captain, arrested the appellant. He was brought to the barangay hall and was later turned over to the police sub-station. The barangay tanods asked permission from the overseer of the Reyes mango farm to conduct a search of the place in connection with the shooting. Barangay Tanod Remigio Agustin found a bag in a small canal in the farm, which contained a homemade shotgun5 with an empty shell. The gun had no serial number, and its bolt could not be pulled.

Rommel gave a sworn statement to SPO1 Marcelino V. Veneracion at 11:30 p.m. of December 19, 1997 where he identified the appellant as the assailant of his father.6 On the same day, Medico-Legal Officer Dr. Jun B. Concepcion performed an autopsy on Romeos body and prepared an autopsy report, showing inter alia that the victim sustained multiple gunshot wounds and that five slugs were extracted from his body:

F I N D I N G S ( P E R T I N E N T O N L Y ):

Ht: 165cm in legth ([sic].

(+) Gunshot wounds, multiple, on the (L) supra-scapular area, as point of entry, (7), 5-6 inches away from mid-cervical vertebrae, 3-3cm in dia. with trajectory towards the (R) Ant. chest area, 1-slug through through the rest non-through-through.

INTERNALLY: (+) Gunshot wounds, multiple, penetrating the (L) lung (apex & middle lobe).

(+) Gunshot wounds, multiple, penetrating the (R) lung

middle & basal). Extracted 4 rounded materials embedded on it.

(+) Ribs & cervical vertebrae fractures. 2nd-3rd (ribs), (5th, 6th & 7th).

NOTE: Extracted 5 slugs submitted to the investigator for exhibit.



According to the doctors testimony, the nature and location of the wounds and the type of slug extracted from the body of the victim points to the possibility that a shotgun was used by the assailant.

The Appellants Defense

The appellant denied killing Romeo. He testified that Romeo was his friend and that he had no motive for killing the latter. On December 19, 1997, he and Romeo had a drinking spree at the Reyes farm from 5:00 p.m. to 6:00 p.m. He was already drunk at about 6:20 p.m., and fell asleep in his house at Purok 1, Pantoc, Bakodbayan, Cabanatuan City, about five hundred meters away from Romeos house. He was awakened when the members of the Bantay Bayan arrived to fetch him. He was told that they were ordered to bring him to Barangay Captain Nono Concepcion. The appellant was later arrested by policemen and brought back to his house. Members of the Bantay Bayan thereafter searched his yard for the gun used to kill Romeo, but no weapon was found. The appellant pointed out that aside from him, Romeo had other friends whose first names were Lito: Lito Manuel, Lito Edubane, Lito Sado, and Lito del Rosario, with whom he and Romeo used to have drinking sprees. Any one of them could have killed Romeo.

After due proceedings, the trial court rendered judgment acquitting the appellant for violation of Republic Act No. 8294 in Criminal Case No. 7967-AF and convicting him of murder in Criminal Case No. 7966-AF, the decretal portion of which reads:

WHEREFORE, premises considered, and in the absence of any mitigating circumstance and in the presence of the aggravating circumstance of dwelling, the Court finds and so holds the accused JOSELITO DELA CRUZ y DAMASO guilty beyond reasonable doubt of the crime of MURDER and sentences him to suffer the penalty of DEATH in Criminal Case No. 7966(AF), and for him to indemnify the heirs of the deceased offended party in the sum of P50,000.00, and the amount of P56,607.00, representing actual damages.

No moral damages are awarded as the same is subsumed in the civil indemnity for death (People vs. R. Daen, G.R. No. 112015, 26 May 1995).

To pay the costs of the suit.

In criminal Case No. 7967-AF, for Violation of Sec. 1, Pars. 1 & 3 of Republic Act 8294 (Aggravated Illegal Possession of Firearm), for insufficiency of evidence, the Court hereby orders the ACQUITTAL of the accused, without costs.

SO ORDERED.8cräläwvirtualibräry

On automatic appeal in Criminal Case No. 7966-AF, the appellant assails the decision of the trial court, contending that:









The appellant avers that Rommel could not have seen him shoot and kill the victim because the boy was inside the room upstairs, while the victim was in the sala watching television. It took Rommel about two minutes to rush down from the room upstairs to the sala where his father was lying prostrate on the floor. By then, the assailant had already gone out of the house and fled to the open fields. For its part, the trial court gave credence and full probative weight to Rommels testimony that he was only half a meter away from his father when the shooting took place, and that he saw the appellant outside the house immediately after the shooting and even pursued the latter:

Rommel Domingo had known the accused for quite sometime as he had frequented their place in drinking sessions with his late father. As a matter of fact, the accused himself had admitted that he had frequented the victims store in search of drinking companionship [sic] and idle banter. Addedly, there was sufficient lighting inside and outside the victims residence. Inside the house hang a 40-watt electric bulb and the lit TV set provided adequate lighting that helped the son identify his fathers attacker. Furthermore, the son pursued immediately the accused after he fired the fatal shot at the decedent. Outside, there was another electric bulb providing illumination that helped the son identify the accused who stumbled to the ground and whose side view of his face was viewed for the second time by the young witness.

Rommel Domingo is a credible witness for, aside from his youth and yet untarnished perception of truth, he had no ill-motive to ascribe something evil to the accused unless he, truly, was the author thereof.

The testimonies of witnesses Rommel Domingo and Leonora are credible as they are impressed with truth and logic aside from the fact that they have no ill-motive to so give such damning testimony against herein accused were it not, indeed, the truth. Even the accused had admitted that he could not see any ill-motive on the part of the victims son for his testimony derogatory to him.

When there is no evidence indicating that the principal witness for the prosecution was moved by any improper motive, the presumption is that he was not so moved, and his testimony is entitled to full faith and credit (People vs. Tidong, 225 SCRA 324.)10cräläwvirtualibräry

The appellants contention does not persuade. The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses, its assessment of their credibility and the probative weight of their testimonies, as well as its conclusions anchored on the said findings, are accorded by the appellate court high respect if not conclusive effect, unless the trial court ignored, misunderstood and misconstrued facts and circumstances of substance which, if considered, would warrant a reversal of the outcome of the case.11cräläwvirtualibräry

This Court finds no basis for deviating from the findings and conclusions of the trial court. The records show that an ocular inspection of the situs criminis was conducted in the presence of the appellant, his counsel and the public prosecutor, during which Rommel testified on his location relative to where his father was seated while they were watching television, before and after the latter was shot. Rommel testified that he was merely half a meter away from his father and saw the appellant immediately after the gunfire. The transcript of the stenographic notes taken during the ocular inspection reads:


Make it [appear] on record that at 10:00 oclock, the Presiding Judge, the Public Prosecutor, the defense counsel and the accused together with the court personnel are in the house of the victim where the alleged incident happened. Proceed with your cross-examination, counsel.


Q Will you please tell in what particular place were you able to see the accused immediately after the shot was heard?

A He was already outside, sir.


Q When the accused actually shot the victim, did you see him?

A Yes, sir.

Q Where were you?

A I was there, sir.


Q Will you please position yourself in the same position when you saw the accused?

A Like this, sir. (witness demonstrated himself that he is seating [sic] at the third step of the stair).

Q How about your father, where was he?

A There, sir, (witness was about a meter).

Q How about the victim when the accused actually shot [by] him, how far was he?

A Here, sir, (witness demonstrated a distance of about a meter).

Q Taking into consideration you were seated there, how did you see?

A I turned my head sidewise, sir.


Make it appear on record that the Court observes that the witness was a meter from the victim and the victim is a meter from the accused and by the demonstration as shown by the witness, the witness is in a position to see the accused.


Q During the initial direct as well as the partial cross-examination, you stated that the first time that you saw the accused after the shot was heard by you was in the field, is that correct?

A Yes, sir.

Q A while ago, you also demonstrated and in fact stated that you saw the accused right behind your father while watching the TV?

A Yes, sir.

Q Will you please reconcile, was it when he was already in the field when you first saw him or while he was here?

A I first saw him while he was by the side of my father, sir.


Q By the time that you saw the accused behind your father, was there any light during that particular time?

A Yes, sir.

Q Which light was on on that particular time?

A The light in the ceiling and the one outside, sir.


Make it appear on record that the light is 3 meters away from the victim and the bulb is 40 watts and the victim is about 2 meters away from the TV.


Q And that the height of the bamboo post where the light is placed is 6 meters. After the partial cross-examination, during the last hearing, was there any person [sic] talked to you with regards to your testimony now?

A Yes, sir.


Make it appear on record that on the rightside [sic] of the door about 3 meters, there is an electric bulb and from the front portion of the store there is also that light at the acacia tree.


Let it be placed on record that the wall, the highest portion is about 5 feet, Your Honor.

Q Mr. Witness, at the time of that alleged shooting incident, will you tell the court if the acacia is at that present state during that night?

A It is in the same state as it is now, sir.


Make it appear on record that the field is right behind the house, the edge of the field is about 10 meters and there is also another house immediately behind the store, which is a portion of the house of the victim. And let it be placed on record that the perimeter of the residential lot where the house of the victim is constructed is fully secured by a perimeter fence made by bamboo and barbed wire and there are bamboo trees from the left side of the house right behind the store.


The bamboo trees were cut after the burial. Make it on record that the Court left the premises at 10:40 a.m.12cräläwvirtualibräry

It must be stressed that Rommel had known the appellant for two years before the shooting and had seen the appellant and his father together many times having drinking sprees in their house. Rommel even called the appellant Kuya Lito. Considering Rommels proximity to the victim and the appellant and the lighting condition in the sala at the time of the shooting, there can be no doubt that Rommel saw his fathers assailant. Moreover, when Rommel ran after the appellant, the latter fell to the ground as he fled towards the direction of the open field. It was at this instant when Rommel saw the appellants face:

Q Now, you stated a while ago, you were able to see Joselito dela Cruz running away is that correct?

A Yes, sir.

Q Will you please tell to this Honorable Court, the exact position of Joselito dela Cruz when he was running away from the scene of the crime?


Objection, Your Honor, the witness is not in a position, how can ...


Question, at the first time you saw Joselito dela Cruz running, did you see his face?

A Yes, Your Honor.

Q Why, was he facing you or his face on the sidewise?

A On his sidewise, sir. (Nakatagilidpo).

Q For how long have you known this Lito?

A Long time, Your Honor, about two years.

Q Why has Lito frequently in [sic] your house or you went on [sic] his house?

A I used to see him in our house, sir, he used to drink with my father.

Q Drinking what?

A Drinking liquor with my father, sir.

Q How many times before the shooting to your father, was this Lito drinking liquor with your father?

A Many times, sir.

Q You cannot count with your finger?

A Yes, sir.

Atty. Dalangin:

Q At that time that accused was running and you were able to see the sideview [sic] of his face?

A Yes, sir.

Q And when you were able to see him running away from the scene of the crime, what part of your house did you ever see him?

A In the field already, sir.

Q How far?

A About three (3) meters, sir.

Q And there were no other illumination of light in the field?

A Yes, sir.

Q And how were you able to recognize him?

A Because when he was about to run, he fell down, sir.

Q How far did he fell [sic] down from the place where your father laying [sic] prostrate?

A About 1 meter, [sic] sir.

Q And in that 1 meter distance, you can recognize him?

A Yes, sir.13cräläwvirtualibräry

Although the appellant had a head start, considering that some time had elapsed between Rommels rushing to his mortally wounded father and his pursuit of the perpetrator of the crime, it could not have been impossible for the boy to have overtaken the appellant when the latter fell down after fleeing the victims house.

It bears stressing that barely two hours after the shooting, Rommel executed a sworn statement in the police station identifying the appellant as the assailant of his father.14 When he testified, Rommel again spontaneously identified the appellant as the culprit.15cräläwvirtualibräry

The presumption is that witnesses are not actuated by any improper motive absent proof to the contrary. Their testimonies must accordingly be met with considerable, if not conclusive, favor under the rules of evidence because it is not expected that the said witnesses would prevaricate and cause the damnation of one who brought them no harm or injury.16cräläwvirtualibräry

Even without Romeos declaration to his wife and son shortly before he expired that it was the appellant who shot him, Rommels testimony, in tandem with the other evidence on record, is sufficient proof of the appellants guilt.

The appellants alibi must fail in the light of Rommels positive and straightforward testimony.17 We have ruled that alibi is the weakest if not one of the weakest of defenses in criminal prosecutions because it is easy to contrive and difficult to disprove.18 The accused must prove, clearly and convincingly, that he was at a place other than the situs criminis when the crime was committed, such that it was impossible for him to have committed the same. In this case, the appellant relied solely on his testimony to prove his defense. Moreover, the appellant resided barely five hundred meters away from Romeo. Considering the short distance between the two houses, it was not impossible for the appellant to be at the scene of the crime.

The Crime Committed by the Appellant

The trial court held that the appellant is guilty of murder qualified by treachery. The appellant asserts that the prosecution failed to prove the qualifying circumstance of treachery because there is no evidence of the particulars that transpired before the victim was shot. The bare fact that the victim was shot at the back does not prove treachery. For its part, the trial court held that the killing was qualified by treachery because the victim was shot unexpectedly and so suddenly, without the slightest provocation on the part of the latter.

We agree with the trial court. The victim was watching television with his back towards the door of the house. Because the door was open, the appellant was able to noiselessly approach the victim from behind and fire the gun. The victim was unarmed. He did not expect the appellant to stealthily intrude into his house and shoot him at close range. Patently, the killing was qualified by treachery.19

The Proper Penalty

The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, is reclusion perpetua to death. The crime was aggravated by dwelling. However, the same cannot be appreciated against the appellant because dwelling was not alleged in the information as mandated by Section 9 of Rule 110 of the Revised Rules of Criminal Procedure.20 Although the crime was committed before the effectivity of the Rule, the same should not be applied against the appellant because it is not favorable to him.21 There being no modifying circumstance attendant in the commission of the crime other than the qualifying circumstance of treachery, the imposable penalty on the appellant is reclusion perpetua, conformably to Article 63 of the Revised Penal Code.

The Appellants Civil Liabilities

The trial court directed the appellant to pay the heirs of the victim the amount of P50,000 as civil indemnity ex delicto, but failed to award moral, temperate and exemplary damages. The trial court also awarded actual damages in the amount of P56,607 despite the prosecutions failure to adduce any documentary evidence to prove the same. The decision of the trial court must, accordingly, be modified.

In addition to civil indemnity ex delicto, the heirs of the victim Romeo Domingo are entitled to moral damages in the amount of P50,000. The award of actual damages in the amount of P56,607 on the basis solely of a summary of expenses adduced by the prosecution shall be deleted.22 However, the heirs are entitled to temperate damages in the amount of P25,000 conformably to current jurisprudence.23 The heirs are also entitled to exemplary damages in the amount of P25,000.24cräläwvirtualibräry

IN LIGHT OF ALL THE FOREGOING, the Joint Decision of the Regional Trial Court of Cabanatuan City, Branch 27 in Criminal Case No. 7966-AF is hereby AFFIRMED with MODIFICATION. Appellant Joselito dela Cruz y Damaso is hereby found guilty beyond reasonable doubt of Murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, qualified by treachery. There being no modifying circumstance attendant to the commission of the crime, the appellant is hereby sentenced to suffer the penalty of reclusion perpetua. He is further directed to pay the heirs of the victim Romeo Domingo, the amount of P50,000 as civil indemnity; P50,000 as moral damages; P25,000 as temperate damages; and P25,000 as exemplary damages.

Costs de officio.


Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.


1 Penned by Judge Feliciano V. Buenaventura.

2 Records (Crim. Case No. 7966-AF), p. 1.

3 Records (Crim. Case No. 7967-AF), p. 1.

4 The prosecution presented Rommel Domingo, Dr. Jun Concepcion, Jose Mateo, Remigio Agustin and Leonora Domingo as witnesses.

5 Also called de sabog in the vernacular.

6 Exhibit A, Records, p. 99.

7 Exhibit C, Id. at 100.

8 Id., at 96.

9 Rollo, p. 43.

10 Id., at 68.

11 People v. Galam, 325 SCRA 489 (2000).

12 TSN, 2 April 1998, pp. 2-3 (Ocular Inspection).

13 TSN, 24 March 1998, pp. 11-13 (Rommel Domingo).

14 Exhibit A to A-2, Records, p. 99.

15 TSN, 24 April 1998, p. 4 (Domingo).

16 Naval v. Panday, 321 SCRA 290 (1999).

17 People v. Enoja, 321 SCRA 7 (1999).

18 Ibid.

19 People v. Abordo, 321 SCRA 23 (1999).

20 SEC. 9. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

21 People v. Gallego, 338 SCRA 21 (2000).

22 Exhibit F to F-1, Records, p. 103.

23 People v. Del Valle, 372 SCRA 297 (2001).

24 People v. Catubig, 363 SCRA 621 (2000).


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