PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HENRY ALMAZAN, accused-appellant. (Sept. 17, 2001) DECISION BELLOSILLO, J.

: This is an appeal from the Joint Decision[1] of the trial court declaring accused-appellant Henry Almazan guilty of murder and frustrated murder. It traces its origin to two ( ! Informations charging Henry Almazan with shooting "oli #. $adriaga with a handgun% aggra&ated 'y treachery and e&ident premeditation% which caused the latter(s death) and with shooting "oel $adriaga with the same handgun which would ha&e produced the latter*s death if not for timely medical attendance% doc+eted as ,rim. ,ases "os. ,--1 ./ and ,--1 .. respecti&ely. These cases were tried 0ointly pursuant to #ec. 11% 2ule 113% of the 1985 Rules on Criminal Procedure. 4n 5 #eptem'er 133/% at a'out 1677 o(cloc+ in the afternoon% 8icente $adriaga and a certain Allan played chess in front of the former(s house at 9ag-asa% ,amarin% ,aloocan ,ity. #pectators were 8icente(s son "oli% who was carrying his -year old daughter% 8icente(s grandson "oel% and a neigh'or named Angel #oli&a. :hile the game was underway% Henry Almazan une;pectedly arri&ed and 'randished a .<5 cali'er re&ol&er in front of the group. Almazan(s fighting coc+s had 0ust 'een stolen and he suspected Angel% one of the spectators% to 'e the culprit. Thus he said% =manos-manos na lang tayo%=[ ] aimed his gun at Angel and pulled the trigger. It did not fire. He tried again% 'ut again it failed. At this 0uncture% 8icente $adriaga stood up and tried to calm down Henry% 'ut the latter refused to 'e pacified (=ayaw paawat= . Angel ran away and Henry aimed his gun instead at "oli. "oli cried for mercy% for his life and that of his daughter% 'ut to no a&ail. [<] Henry shot "oli at the left side of his stomach sending him immediately to the ground. His daughter% unscathed% held on to "oli% crying. Henry then turned on "oel and shot him on the left thigh. "oel managed to wal+ lamely (=pai!a-i!a= 'ut only to e&entually fall to the ground. Thereafter% 8icente $adriaga called on his neigh'ors who 'rought "oli and "oel to the hospital. "oli howe&er died 'efore reaching the hospital% while "oel sur&i&ed his in0uries. >r. $a. ,ristina ?reyra of the 9"9 ,rime @a'oratory #er&ice conducted an autopsy on the 'ody of "oli which re&ealed that the cause of the &ictim(s death was a gunshot at the trun+ from a .<5 cali'er re&ol&er. >r. $isael Aonathan Ticman% attending physician of "oel% in turn declared that the gunshot wound on the left thigh of "oel was a minor in0ury that would heal in a wee+. [1] "oel was ne&er admitted in the hospital as his doctor sent him home the same day. [-] 4n cross-e;amination% >r. Ticman testified that if not medically treated the wound might get infected or lead to the &ictim(s death.
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:itnesses for the defense narrated a different &ersion. They pointed to Angel #oli&a instead as the person to 'lame for "oli $adriaga(s death while 0ustifying "oel $adriaga(s wound as a result of self-defense. Henry Almazan testified that at a'out 1677 o*cloc+ in the afternoon of 5 #eptem'er 133/ he went home accompanied 'y his friend Aohnald $olina. Henry(s wife informed him upon his return that his fighting coc+s% twel&e (1 ! in num'er% had 'een stolen. He went out of the house to inBuire from neigh'ors as to who could ha&e ta+en his coc+s. He was followed 'y Aohnald. 4n their way they saw 8icente $adriaga and Allan playing chess surrounded 'y "oli% "oel% Angel and other persons. They were drin+ing liBuor. As he (Almazan! and Aohnald were passing 'y% Angel called Henry and as+ed if he was loo+ing for his fighting coc+s. The group then 'urst into laughter and pointed to their pulutan. #omeone in the group ad&ised Henry not to loo+ anymore for his fighting coc+s as he would only 'e courting trou'le (=nag"a"anap !a lang ng sa!it ng !atawan = . To this ad&ice Henry

replied% =#a!it naman ganoonC= #uddenly% Angel pulled out his gun and shot Henry twice 'ut the gun did not fire. #eizing the opportunity Henry grappled with Angel for the possession of his gun. >uring the scuffle Angel pulled the trigger which hit "oli. Henry finally succeeded in wresting the gun from Angel and aimed it at him. #uddenly% he recei&ed a 'low from 'ehind and he fell. As he raised his head from the ground% he saw "oel poised to attac+ him with a 'ro+en 'ottle% so that he had to train his gun at the lower part of "oel(s 'ody and fired. The 'ullet hit "oel on the thigh which sent him reeling down his +nees (=napalu"od= . #hoc+ed and afraid that he hit "oel% Henry ran home. Aohnald $olina corro'orated Henry Almazan(s statement in all material points. Aohnald testified that the group moc+ed Henry when they told him not to loo+ for his coc+s anymore as they had already 'een coo+ed for pulutan% and to insist in his search would only cause him physical trou'le. Henry could only reply% =$ila nga may nagna!aw ng mga mano! !o . . . . #a!it naman ganoon%= As he made his remar+s% someone from the group suddenly pulled out a gun and aimed at Henry. Henry grappled with the gun-wielder who pressed the trigger twice 'ut the gun misfired each time. :hen the gunwielder pulled the trigger for the third time it fired% hitting a person who was carrying a small child and standing within the &icinity. He was o'&iously referring to "oli. Aohnald immediately ran towards Henry(s house to report the incident to his wife and as+ed for help. Then he heard another shot% 'ut in his haste to reach Henry(s house he ignored it. Dpon reaching Henry(s house% Henry also arri&ed. To a&oid 'eing in&ol&ed and out of fear% Aohnald did not report the incident to the police. @ater howe&er% 'othered 'y his conscience and 'eing the friend of Henry% Aohnald &olunteered to testify on what he +new of the incident. The court a &uo found Henry Almazan(s defense de&oid of merit. Apart from 'eing positi&ely identified 'y the prosecution witnesses as the person responsi'le for the &iolence and the in0uries inflicted% the trial court declared that the theft of Henry(s fighting coc+s constituted sufficient moti&e for the +illing and that as a coc+fight afficionado he must ha&e found it imperati&e to e;act &engeance on his suspected culprits.[.] The trial court held that the testimony of Aohnald failed to create reasona'le dou't on the guilt of Henry since as a friend he was e;pected to e;tend succor to a friend% especially one in need.[5] Thus% the trial court held Henry Almazan guilty of murder and frustrated murder as charged. In imposing the penalty for each offense% the lower court appreciated the Bualifying circumstance of treachery against accused-appellant on the ground that the &ictims were completely defenseless when attac+ed and did not commit the slightest pro&ocation% 'ut found no 0ustification for e&ident premeditation as there was no proof as to the manner and time during which the plan to +ill was hatched. 4n the contrary% the trial court found in fa&or of accused-appellant the mitigating circumstance of passion and o'fuscation. Thus% in ,rim. ,ase "o. ,--1 ./% accused-appellant was sentenced to the reduced penalty of reclusion perpetuainstead of death% with all the accessory penalties according to law% and ordered to pay the heirs of the &ictim 9-7%777.77 as death indemnity% 95%777.77 as funeral e;penses% and to pay the costs) while in ,rim. ,ase "o. ,--1 ..% he was sentenced to an indeterminate prison term of eight (5! years of prision mayor% as minimum% to fourteen (11! years and eight (5! months of reclusion temporal% as ma;imum% with all the accessory penalties pro&ided 'y law% and to pay 9 7%777.77 as ci&il indemnity% without su'sidiary imprisonment in case of insol&ency% and to pay the costs. [3] Accused-appellant now prays to 'e a'sol&ed of murder in ,rim. ,ase "o. ,--1 ./ on the ground that the prosecution has failed to pro&e his guilt 'eyond reasona'le dou't. He assails the testimony of #hirley A'ordo% common-law wife of "ilo $adriaga% for 'eing hearsay% as well as the testimony of 8icente $adriaga for its alleged inconsistencies in &arious &ital points. #ignificantly% accused-appellant impugns the &eracity of the prosecution(s e&idence for its failure to present Angel #oli&a who was primarily in&ol&ed in the incident and whom the defense points to as the real transgressor. Thus% accused-appellant contends that e&idence sufficient to esta'lish the a'solute and moral certainty of his guilt 'eing a'sent he should 'e acBuitted.

As for ,rim. ,ase "o. ,--1 ..% accused-appellant contends that the trial court erred in holding him guilty of frustrated murder as the wound sustained 'y "oel $adriaga was not fatal that could ha&e caused his death if not for timely medical assistance. $oreo&er% accused-appellant claims that he shot "oel only to forestall any attac+ on him and not to +ill "oel intentionally. Appellate courts are doctrinally 'ound 'y the trial court(s assessment of the credi'ility of witnesses gi&en the clear ad&antage of a trial 0udge in the appreciation of testimonial e&idence. The trial court is in the 'est position to assess the credi'ility of witnesses and their testimonies 'ecause of its uniBue opportunity to o'ser&e the witnesses first-hand and to note their demeanor% conduct and attitude under grueling e;amination - factors which are significant in the e&aluation of the sincerity of witnesses and in unearthing the truth.[17] :e see no reason to depart from this doctrine. The witnesses for the prosecution were consistent in their narration of the manner 'y which the e&ents transpired% and they remained steadfast in their identification of accused-appellant as the author of the &iolence. >espite attempts to confound them% 8icente $adriaga and "oel $adriaga were relentless in their declaration that it was accused-appellant% armed with a .<5 cali'er re&ol&er% who pounced upon them without warning there'y +illing "oli $adriaga and wounding "oel $adriaga in the process. They were one in their assertion that accused-appellant was inflamed 'y his suspicion that Angel #oli&a and "oel $adriaga had stolen his fighting coc+s and was intent on getting e&en with them% thus he fired at them. Efforts to pass the 'lame on the group 'y claiming that in their ine'riated state they moc+ed accused-appellant and thus initiated the &iolence were actually set to naught as 8icente and "oel $adriaga unfailingly denied the same. True% #hirley A'ordo(s testimony was spattered with inconsistencies 'ordering at times on incoherence. As she herself admitted% her narration was merely deri&ed from the accounts of the other prosecution witnesses and not from her own perception of the e&ents. This constitutes hearsay% which we then re0ect. Fe that as it may% these alleged inconsistencies are immaterial and irrele&ant as they do not alter the determination of the ,ourt that murder was committed and accused-appellant was the assailant. ?or a discrepancy to ser&e as 'asis for acBuittal% it must refer to significant facts &ital to the guilt or innocence of the accused. An inconsistency% which has nothing to do with the elements of the crime% cannot 'e a ground to re&erse a con&iction. [11] In the same &ein% the testimony of Angel #oli&a or of Allan% with whom 8icente $adriaga was playing chess% is unnecessary as the facts on record are clear enough for 0udicial assessment and &erdict. The defense suggests that it could 'e Angel #oli&a instead who shot "oli $adriaga. This is unaccepta'le in the face of the positi&e identification of the accused 'y the prosecution witnesses. The allegation that the shooting was the accidental conseBuence of the struggle 'etween accused-appellant and Angel #oli&a does not inspire 'elief as no su'stantial e&idence was presented to pro&e it. It is highly impro'a'le that a struggle e&en occurred as accused-appellant and Angel #oli&a were surrounded 'y the latter(s friends who would ha&e easily ganged up on accusedappellant. Testimonial e&idence to 'e credi'le should not only come from the mouth of a credi'le witness 'ut should also 'e credi'le% reasona'le and in accord with human e;perience% [1 ] failing in which% it should 'e re0ected. Indeed% Aohnald $olina corro'orated the statement of accused-appellant pointing at Angel #oli&a as the real culprit) howe&er% we are inclined to agree with the o'ser&ation of the court a &uo that it was natural for an indi&idual to e;ert effort in li'erating his friend from confinement or e;ecution% e&en to the e;tent of distorting the truth. It is significant to note that accused-appellant went into hiding after the shooting incident and was only collared 'y the agents from the :estern 9olice >istrict eight (5! months later. ?light indeed is an indication of guilt% especially when accused-appellant failed to sufficiently e;plain why he left his residence and resurrected only se&eral months after.

The trial court properly appreciated the presence of treachery as the attac+ was made upon the unarmed &ictims who had not committed the slightest pro&ocation and who were totally unaware of the murderous designs of accused-appellant. ,ontrary to the finding of the court a &uo% treachery in this case Bualifies the offense to murder% hence% may not 'e considered a generic aggra&ating circumstance to increase the penalty from reclusion perpetua to death. In other words% while the imposa'le penalty for murder is reclusion perpetua to death% in the a'sence of any mitigating or aggra&ating circumstance% the lesser penalty of reclusion perpetua shall 'e imposed. The mitigating circumstance of passion and o'fuscation cannot 'e appreciated in fa&or of accused-appellant as this was ne&er pro&ed during the trial. As for ,rim. ,ase "o. ,--1 ..% accused-appellant admits responsi'ility for the in0uries inflicted on "oel 'ut reasons out that he did so only to defend himself. Accused-appellant therefore pleads selfdefense% a 0ustifying circumstance that could acBuit him of the charge 'ut which we are not disposed to grant as the elements necessary to Bualify his actions [1<] were not present. In alleging that the +illing arose from an impulse to defend oneself% the onus pro'andi rests upon accused-appellant to pro&e 'y clear and con&incing e&idence the elements thereof6 (a! that there was unlawful aggression on the part of the &ictim) ('! that there was reasona'le necessity for the means employed to pre&ent or repel it) and% (c! that there was lac+ of sufficient pro&ocation on the part of the defendant. [11] This% it has failed to discharge. "e&ertheless% we find that the accused-appellant should 'e held lia'le for attempted murder% not frustrated murder. ?or the charge of frustrated murder to flourish% the &ictim should sustain a fatal wound that could ha&e caused his death were it not for timely medical assistance. This is not the case 'efore us. The court a &uo anchored its ruling on the statement of >r. Ticman on cross-e;amination that the wound of "oel could catch infection or lead to his death if not timely and properly treated. Howe&er% in his direct testimony% >r. Ticman declared that the wound was a mere minor in0ury for which "oel% after undergoing treatment% was immediately ad&ised to go home. [1-] He e&en referred to the wound as a slight physical in0ury that would heal within a wee+ [1/] and for which the &ictim was in no danger of dying.[1.] ,lear as the statement is% coupled with the fact that "oel was indeed immediately ad&ised to go home as he was not in any danger of death% we ha&e no reason to dou't the meaning and implications of >r. Ticman(s statement. His statement that "oel could catch infection was 'ased on pure speculation rather than on the actual nature of the wound which was a mere minor in0ury% hence% not fatal. According to 0urisprudence% if the &ictim was wounded with an in0ury that was not fatal% and could not cause his death% the crime would only 'e attempted. [15] The o'ser&ation that the con&iction should 'e for slight physical in0uries only is li+ewise improper as the accused-appellant was moti&ated 'y the same impetus and intent% i.e.% to e;act &engeance and e&en +ill% if necessary% when he shot "oel $adriaga. The fact that the wound was merely a minor in0ury which could heal in a wee+ 'ecomes inconseBuential. In the final analysis% there 'eing no mitigating nor aggra&ating circumstance and the more appropriate offense 'eing attempted murder% accused-appellant should 'e meted a penalty two ( ! degrees lower than the prescri'ed penalty of reclusion perpetua% which is prision mayor the range of which is si; (/! years and one (1! day to twel&e (1 ! years. Applying the Indeterminate #entence @aw in the case for attempted murder% the ma;imum shall 'e ta+en from the medium period of prision mayor% which is eight (5! years and one (1! day to ten (17! years% while the minimum shall 'e ta+en from the penalty ne;t lower in degree% or prision correccional% in any of its periods% the range of which is si; (/! months and one (1! day to si; (/! years. HEREFORE% the Joint Decision of the trial court of 1- Aune 1333 finding accused-appellant HE"2G A@$AHA" guilty of $urder in I.2. "o. 1<531< (,rim. ,ase "o. ,--1 ./! and sentencing him to reclusion perpetua with its accessory penalties% and to pay the heirs of "oli $adriaga 9-7%777.77 as death indemnity% 95%777.77 as funeral e;penses% and to pay the costs% is A??I2$E>. Howe&er% his con&iction for ?rustrated $urder in I.2. "o. 1<5311 (,rim. ,ase "o. ,--1 ..! is $4>I?IE> 'y lowering the crime to Attempted $urder and he is sentenced accordingly to an indeterminate prison

term of two ( ! years% four (1! months and ten (17! days of prision correccional medium as minimum% to eight (5! years two ( ! months and twenty ( 7! days of prision mayor medium as ma;imum% and to pay the offended party "oel $adriaga the amount of 9 7%777.77 as ci&il indemnity% and to pay the costs. SO ORDERED. (endo)a* +uisum'ing* #uena* and De ,eon* Jr-* concur.