Revised Penal Code, as amended, is present.

The prosecutor’s evidence had established that accused Alberto Marcial shot
Wilfredo Sagun and herein private complaints Reynaldo and Roberto Sagun
(Complaints in Criminal Case Nos. 03-165 and 03-166, respectively), using the gun
handed to him by his co-accused, Allan Sagun. As the private complaints ran and hid to
take cover, neither of the were hit. Hence, Alberto was not able to perform all the acts of
execution which should have produced the felony. Their testimonies were duly
corroborated on material points, by the testimony of witness, Angelina S. Fabian. While
the latter is the wife of complainant Reynaldo it was not shown that she had improper
motive to testify falsely against the two (2) accused. The logical conclusion then is that,
no such improper motive exists and that his testimony is worthy of full faith and
credence. A categorical and consistently positive identification of the accused, without
any showing of ill motive on the part of the eyewitnesses, prevails over denial.

In trying to dissuade the court, each accused presented a different version of the
incident. For his part, Alberto denied ownership and or possession of a firearm. Hence,
he could not have perpetrated the crime. He claimed that if Allan had a gun, the latter
could have fired it against the complainants, instead handing it to him. Alberto believed
that these charges could be ascribed on the business competition between him and the
Saguns, more so that the latters’ customers transferred to him. Thus, the Saguns had
an animosity (saloobin) towards them. Accused Allan, likewise, denied the accusation
against him, pointing out that at the time of the incident, he was at the consignation in
San Pascual, Hagonoy, Bulacan, where he bought four (4) baneras of milk fish and it
was already 6:00 of that morning when he left Hagonoy and went to Apalit by tricycle.
He reached Apalit in an hour, at around 7:00 am. He adduced in evidence a copy of the
15 September 2014 Decisions of the Court of Appeals in People v. Alberto Marcial and
Allan MArcial, docketed as CA G.R. CR No. 35820 marked as Exhibits “9” to “9-G”,
acquitting him of Frustrated Homicide which involved the same incident.

Accused Alberto bare denial and alibi deserve scant consideration. The supreme
court has held that, “denial, if unsubstantiated by clear and convincing evidence, is a
negative and self-serving evidence, which deserves no weight in Law and cannot be
given greater evidentiary value over the testimonies of credible witnesses who testify on
affirmative matters”. Moreover, for the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time of the commission of the
crime, but also that it was physically impossible for him to be at the locus delicti or within
its impeditive vicinity. Physical impossibility refers not only to the geographical distance
between the two places. Here, Alberto even admitted at the Apalit Public Market at the
time of the incident, vending fish with hi9s wife in their fish stall.
 Anent accused Allan’s clam that he was someplace else at the time of the
incident, the court cannot help but notice the inconsistencies between his testimony and
that of the defense witness Emerlita Sicat i.e., that between 5:00 to 6:00 that morning,
she saw Allan pass by their grocery store and placed the fish inside the storage,
whereas, Allan claimed that he was back in Apalit with the fishes by 7:00 that morning.
This inconsistency pertains to a material fact as it puts it into question the actual
whereabouts of Allan at the time of the incident. At any rate, the travel time from
hagonoy to Apalit is only about an hour up to an hour and a half, as testified to by Allan.
With such short distance, It cannot be at the place of the crime at the time of the
shooting incident.

Emerlita;s testimony that when Allan arrived with the fished, she helped him
place it in the cooler and thereafter, they went home together; against Allan’s statement
that it was his mother who received it and he went home with him mother, while maybe
trivial, are worth nothing.

It is also well to mention that the acquittal of Allan by the Honorable court of
Appeals CA G.R. CR No. 35820 is founded on the testimony of certain Cruz, who
categorically declared that Allan was buying fish in San Pascual, Hagonoy, Bulacan,
when the shooting incident happened. In this case, however, nobody testified of his
presence in San Pascual on the said date and time. Not even Cruz testified on the
matter.

The foregoing findings, notwhithstanding, while accused Alberto had indeed

committed the overt act of firing his gun towards the private complainants, there is no
evidence tending to prove that he had animus interficendi or intent to kill the two (2)
private complainants. In Geromino Dado vs. People, it was held that intent to kill cannot
be automatically drawn from the mere fact that the use of firearm is dangerous to life.
Animus interficendi must be established with the same degree of certainty as is required
of the other elements of the crime. The inference of intent to kill should not be drawn in
the absence of circumstances sufficient to prove such intent beyond reasonable doubt.
It bears to note that after Alberto fired the shots at Roberto, Reynaldo and then at
Wilfredo and Having hit the latter twice, Alberto left the place, leaving Roberto and
Reynaldo unscathed.

The Geromino Dado case further rationalized that though the information
charged the petitioner with murder (attempted homicide for the herein accused), he
could be validly convicted of illegal discharge of firearm, an offense which is necessarily
included in the crime of unlawful killing of a person. Under rule 120, Section 4, of the
Revised Rules of Criminal Procedure, when there is a variance between the offense
charged in the complaint or information and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall be convicted
of the offense charged which is included in the offense proved.

Consequently, in the absence of any intent to kill in firing the gun towards the
private complainants, accused Alberto Sagun should be held liable for the crime of
Illegal discharge of firearm under Article 254 of the Revised Penal Code, which has the
following elements: (1) that the offender discharged a firearm against of at another
person; and (2) that the offender has no intention to kill that person.

The only matter left for determination is, whether Allan, in handing to Alberto the
gun that was used in shooting at the private complainants may be held liable therefore
as a co-conspirator. We rule in the negative.

Conspiracy exists when two or more persons come to an agreement concerning

the commission of a felony and decide to commit it. Although the agreement need not
be directly proven, circumstantial evidence of such agreement must nonetheless be
convincingly shown. Indeed, like the offense itself, conspiracy must be proved beyond
reasonable doubt, thus, it has been held that neither joint nor simultaneous action is per
se sufficient proof of conspiracy.

Here, Allan act of handing the gun to his father, Alberto, does not per se proves
his agreement to the latter’s intention to actually shoot at the private complainants. In
conspiracy, there should be a conscious design to perpetrate the offense. At the most,
he is held liable as accomplice in the commission of the crime under Article 18 of the
Revised Penal Code, which defines accomplices as “those persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or
simultaneous acts.” “the cooperation that the law punishes is the assistance knowingly
or intentionally rendered, which cannot exist without previous cognizance of the criminal
act intended to be executed. It is therefore required in order to be liable either a
principal by indispensable cooperation, or as an accomplice, that the accused must
unite with the criminal design of the principal by direct participation.”

Pursuant to Article 254 of the Revised Penal Code, Illegal discharge of firearm is
punishable with prision correctional in its minimum and medium periods. There being no
modifying circumstances and applying the Indetermine Sentence Law, Albertoshould be
sentenced to suffer the penalty of Imprisonment of from six (6) months of arresto mayor,
as minimum to two years and eleven months of prision correctional, as maximum.

From the same law, Allan, as an accomplice for the crime of illegal discharge of
firearm, is punishable with arresto mayor in its medium and maximum periods, which
has a range of two (2) months and one day to six months.
Prefatory:

1. As per records, the prosecution in its Joint Resolution dated July 9, 2003 held:

“thus, for unsuccessfully firing at Roberto Sagun and Reynaldo Sagun,

respondents should be charged for two courts of attempted homicide, for such
acts constitute the overt act of the crime homicide. Meanwhile, for having fired at
and hitting Wilfredo Sagun in the neck, respondents should be charged for
Frustrated Homicide.

Xxx
Conspiracy between the two respondents is also evident from the fact that
respondent Allan Marcial was the one who provided the gun used by
Alberto Marcial in shooting at the complainants.

WHEREFORE, premises considered, it us respectfully recommended that

the two information for Attempted Homicide and one information for frustrated
homicide be filed against respondents Alberto Marcial and Allan Marcial with the
Municipal Circuit Trial Court of Apalit-San Simon, Pampanga and Regional Trial
Court of MAcabebe, Pampanga, respectively.”

2. Accordingly, both accused Alberto Marcial and Allan Marcial are now indicted
in this Honorable Court for two counts of attempted homicide “for unsuccessfully firing at
Roberto Sagun and Reynaldo Sagun.” And that “Allan Marcial was the one who
provided the gun used by Alberto MArcial in shooting at the complainants.”

Purpose:

This testimony is being offered to disprove the above cited findings of the
prosecution as it has been held by the Appellate Court in its Decision promulgated on
September 15, 2014 in Ca G.R. CR No. 35820, entitled “PEOPLE OF THE
PHILIPPINES, plaintiff-appellee, versus ALBERTO MARCIAL and ALLAN MARCIAL ,
accused-appellants”, that accused Allan Marcial was not at the scene of the incident
and there is no conspiracy between accused Allan Marcial and accused Alberto Marcial.
to quote said decisions:
 “The prosecution miserably failed to establish that appellant ALLAN
was at the scene of the rime and conspired with appellant ALBERTO in
committing the crime. The testimonies of the prosecution witnesses pointing to
appellant ALLAN as the one who handed the gun to appellant ALBERTO, is of
doubtful veracity. Private complainant Wilfredo averred that on the date of the
shooting incident, appellant ALLAM was positioned in front of their sari-sari store
and handed the gun to appellant ALBERTO. Upon the other hand, prosecution
witness Reynaldo propounded a different account: while he and appellant
ALBERTO were in a heated argument, appellant ALLAN suddenly arrived and
handed the gun to appellant ALBERTO. In this light, we hold and so rule that
appellant ALLAN was not at the scene of the incident and did not conspire with
the criminal intent of appellant ALBERTI.

Invariably, we give credence to the defense of alibi interposes by appellant

ALLAN. The twin requirements for the defense of alibi to be plausible are: first,
they must prove that they were nowhere in the vicinity of the crime at the time of
its commission; they must prove that it was highly impossible for them to be
present at the crime scene at the time of its occurrence. The defense of alibi
assumes significance or strength when it is amply corroborated by a credible
witness.

The defense was able to probe that appellant ALLAN was at another
place when the felony was committed, and that it was physically
impossible for him to have been at the scene of the crime at the time it was
committed. Appellant ALLAN’s alibi was corroborated by the simple and
unbiased testimony of Roberto Cruz that he was in San Pascual, Hagonoy,
Bulacan on that date and time. Thus, it was physically impossible for him to be at
the locus delicti or within the immediate vicinity. Ergo, conspiracy coukd not be
inferred, for, as earlier adumbrated, there was no sufficient evidence that
appellant ALLAN was present at the crime scene at all.” (Emphasis supplied)

It is, therefore, true that accused Allan Marcial handed a gun to his father,
the accused Alberto Marcial and both accused should be acquitted of the crimes
charged in these instant cases.

This testimony is likewise being offered in adition to the testimony

previously given by the accused Allan Marcial on May 27, 2010.
 The witness, accused Allan MArcial, shall also identify the aforesaid
Decision of the Court of Appeals. Thus –

KARAGDAGANG SALAYSAY
PARA SA HUKUMAN

Ako, ALLAN MARCIAL, matapos makapanumpa sa ilalim ng batas, ay

nagsasabi:

Ang salaysay na ito para sa hukuman ay ginawa sa Tagalog, isang lengguwahe

na alam at naiintindihan ko;

Ako ay nasa hustong gulang, walang asawa, isang tinder ng isda at nakatira sa
177 San Pascual, Hagonoy, Bulacan.

Dito ay sinagot ko ang mga tanong ni Atty. Aramis C. Benoza sa A.C Benoza
Law Office, Gonzales Avenue, San Vicente, Apalit, Pampanga, at alam ko na ito ay sa
ilalim ng sumpa at pwede akong makasuhan ng criminal kung ako ay
nagsisisinungaling, at sinasagot ko ang kaniyang mga tanong base sa aking personal
na kaalaman at mga totoong documento.\

T1: Ano ang pakay mo sa pagpunta mo ditto?

S1: Nais ko pong magbigay ng karagdagang salaysay sa hukuman upang patunayan
na ako at ang aking ama na si Alberto Marcial ay hindi ginagawa ang mga pinaparatang
sa amin.

T2: Paano mo naman mapapatunayan na hindi ninyo ginawa ang pinaparatang

laban sainyo?
S2: Nagkaroon po ng Desisyon ang Court of Appeals na pinapawalang sala ako dahil
wala ako sa lugar na pinangyarihan ng krimen.

T3: Saang kaso ang sinasabi mong desisyonng Court of Appeals?

S3: Ito po ay sa kasong Frustrated Homicide na nisinampa din laban sa amin ng ama
ko.

T4: Ano ang kaugnayan nng kasong sinasabi mo sa kasong nakasampa laban
sainyo sa Municipal Circuit Trial Court ng Apalit at San Simon, Pampanga?
S4: Parehong insidente lamang po ang tinutukoy sa mga kaso.

T5: Anong insidente naman iyon?

S5: Na may inabot daw po akong baril sa ama ko at pinaputukan daw niya sina
Roberto Sagun, Reynaldo Sagun at Wilfredo Sagun kaya’t inaakusahan kami ng
Attempted Homicide at Frustrated Homicide.

T6: Bakit ka naman pinawalang sala ng Court of Appeals?

S6: Dahil po napatunayan na talaga naming wala ako sa lugar na pinangyarihan ng
krimen.

T7: Ayon sa taga-usig at mganagrereklamo, nagsabwatran daw kayo ng iyong ama

na si Alberto MArcial na gawin ang mga krimen dahil ikaw daw ang nag abot ng baril sa
kaniya, ano ang masasabi mo sa paratang na ito?
S7: Wala pong katotohanan ang paratang na iyan.

T8: Bakit mo nasabi na ito ay walang katotohana?

S8: Kasi nga po ay napatunayan na wala ako sa lugar na pinangyarihan ng krimen.
Ibig sabihin, hindi totoong nag-abot ako ng baril sa ama ko dahil wala ako doon para
mag abot sakanya kagaya ng sinasabi ng mga nagrereklamo.

T9: Kung makikita mob a ang desisyon ng Court of Appeals, makikilala mob a ito?
S9: Opo.

T10: May ipinakita ako saiyong kopya ng Decision na may petsang September 15,
2014 sa kasong CA-G.R. CR No. 35820, ano ang kaugnayan nito sa desisyon na
sinasabi mo?
S10: Ito po ang desisyon na tinutukoy ko.

T11: Sumasang-ayon ka ban a mamarkahan koi to bilang pansamantalang Exhibit

“9”?
S11: Opo

T12: Mayroon ka pa bang gusting idagdag sa mga salaysay mo ditto?

S12: Sa ngayon po wala.