G.R. No. 74433 September 14, 1987 Eastern Samar, to fetch his daughter.
Eastern Samar, to fetch his daughter. However, he was not able to catch
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo,
Leyte, sentencing the accused-appellant Francisco Abarca to death for
the complex crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence
imposed. With the approval of the new Constitution, abolishing the
penalty of death and commuting all existing death sentences to life
imprisonment, we required the accused-appellant to inform us whether
or not he wished to pursue the case as an appealed case. In compliance
therewith, he filed a statement informing us that he wished to continue
with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban accuses Francisco
Abarca of the crime of Murder with Double Frustrated Murder,
committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with deliberate intent to kill and with evident
premeditation, and with treachery, armed with an unlicensed firearm
(armalite), M-16 rifle, did then and there wilfully, unlawfully and
feloniously attack and shot several times KHINGSLEY PAUL KOH on the
different parts of his body, thereby inflicting upon said KHINGSLEY PAUL
KOH gunshot wounds which caused his instantaneous death and as a
consequence of which also caused gunshot wounds to LINA AMPARADO
and ARNOLD AMPARADO on the different parts of their bodies thereby
inflicting gunshot wounds which otherwise would have caused the death
of said Lina Amparado and Arnold Amparado, thus performing all the acts
of execution which should have produced the crimes of murders as a
consequence, but nevertheless did not produce it by reason of causes
independent of his will, that is by the timely and able medical assistance
rendered to Lina Amparado and Arnold Amparado which prevented their
death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The Solicitor
General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had
illicit relationship. The illicit relationship apparently began while the
accused was in Manila reviewing for the 1983 Bar examinations. His wife
was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn,
Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On
the morning of that date he went to the bus station to go to Dolores,
Page 1 of 59
the first trip (in the morning). He went back to the station in the
afternoon to take the 2:00 o'clock trip but the bus had engine trouble
and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then
proceeded to the residence of his father after which he went home. He
arrived at his residence at the V & G Subdivision in Tacloban City at
around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley
Koh in the act of sexual intercourse. When the wife and Koh noticed the
accused, the wife pushed her paramour who got his revolver. The
accused who was then peeping above the built-in cabinet in their room
jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the
house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30
p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at
V & G Subdivision. He was not able to find his wife and Koh there. He
proceeded to the "mahjong session" as it was the "hangout" of Kingsley
Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh
three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina
Amparado who were occupying a room adjacent to the room where Koh
was playing mahjong were also hit by the shots fired by the accused (pp.
34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of
cardiorespiratory arrest due to shock and hemorrhage as a result of
multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29,
tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized
and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17,
1984; see also exh. C). His wife, Lina Amparado, was also treated in the
hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold
Amparado who received a salary of nearly P1,000.00 a month was not
able to work for 1-1/2 months because of his wounds. He spent
P15,000.00 for medical expenses while his wife spent Pl,000.00 for the
same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the
dispositive portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca guilty beyond
reasonable doubt of the complex crime of murder with double frustrated
murder as charged in the amended information, and pursuant to Art. 63
of the Revised Penal Code which does not consider the effect of
mitigating or aggravating circumstances when the law prescribes a single
indivisible penalty in relation to Art. 48, he is hereby sentenced to death,
to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of Twenty
Thousand Pesos (P20,000.00), without subsidiary imprisonment in case
of insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and
defendant's wife had illicit relationship while he was away in Manila; that
the accused had been deceived, betrayed, disgraced and ruined by his
wife's infidelity which disturbed his reasoning faculties and deprived him
of the capacity to reflect upon his acts. Considering all these
circumstances this court believes the accused Francisco Abarca is
deserving of executive clemency, not of full pardon but of a substantial if
not a radical reduction or commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the President of
the Philippines, thru the Ministry of Justice, Manila.
SO ORDERED. 3
xxx xxx xxx
The accused-appellant assigns the following errors committed by the
court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF
ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE
REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the
Revised Penal Code defining death inflicted under exceptional
circumstances, complexed with double frustrated murder. Article 247
reads in full:
ART. 247. Death or physical injuries inflicted under exceptional
circumstances. — Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another person,
shall kill any of them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall suffer the
penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents
with respect to their daughters under eighteen years of age, and their
seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
spouse shall not be entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision
applies in the instant case. There is no question that the accused
surprised his wife and her paramour, the victim in this case, in the act of
illicit copulation, as a result of which, he went out to kill the deceased in
a fit of passionate outburst. Article 247 prescribes the following
elements: (1) that a legally married person surprises his spouse in the act
of committing sexual intercourse with another person; and (2) that he
kills any of them or both of them in the act or immediately thereafter.
These elements are present in this case. The trial court, in convicting the
accused-appellant of murder, therefore erred.
Though quite a length of time, about one hour, had passed between the
time the accused-appellant discovered his wife having sexual intercourse
with the victim and the time the latter was actually shot, the shooting
must be understood to be the continuation of the pursuit of the victim
by the accused-appellant. The Revised Penal Code, in requiring that the
accused "shall kill any of them or both of them . . . immediately" after
surprising his spouse in the act of intercourse, does not say that he
should commit the killing instantly thereafter. It only requires that the
death caused be the proximate result of the outrage overwhelming the
Page 2 of 59
accused after chancing upon his spouse in the basest act of infidelity. But
the killing should have been actually motivated by the same blind
impulse, and must not have been influenced by external factors. The
killing must be the direct by-product of the accused's rage.
It must be stressed furthermore that Article 247, supra, does not define
an offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place in the Code, the
above-quoted article, far from defining a felony, merely provides or
grants a privilege or benefit — amounting practically to an exemption
from an adequate punishment — to a legally married person or parent
who shall surprise his spouse or daughter in the act of committing sexual
intercourse with another, and shall kill any or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical
injury. Thus, in case of death or serious physical injuries, considering the
enormous provocation and his righteous indignation, the accused — who
would otherwise be criminally liable for the crime of homicide, parricide,
murder, or serious physical injury, as the case may be — is punished only
with destierro. This penalty is mere banishment and, as held in a case, is
intended more for the protection of the accused than a punishment.
(People vs. Coricor, 79 Phil., 672.) And where physical injuries other than
serious are inflicted, the offender is exempted from punishment. In
effect, therefore, Article 247, or the exceptional circumstances
mentioned therein, amount to an exempting circumstance, for even
where death or serious physical injuries is inflicted, the penalty is so
greatly lowered as to result to no punishment at all. A different
interpretation, i.e., that it defines and penalizes a distinct crime, would
make the exceptional circumstances which practically exempt the
accused from criminal liability integral elements of the offense, and
thereby compel the prosecuting officer to plead, and, incidentally, admit
them, in the information. Such an interpretation would be illogical if not
absurd, since a mitigating and much less an exempting circumstance
cannot be an integral element of the crime charged. Only "acts or
omissons . . . constituting the offense" should be pleaded in a complaint
or information, and a circumstance which mitigates criminal liability or
exempts the accused therefrom, not being an essential element of the
offense charged-but a matter of defense that must be proved to the
satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of
Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more manifest when
we consider that its counterpart in the old Penal Code (Article 423) was
found under the General Provisions (Chapter VIII) of Title VIII covering
crimes against persons. There can, we think, hardly be any dispute that
as part of the general provisions, it could not have possibly provided for
a distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal Code does
not define and provide for a specific crime, but grants a privilege or
benefit to the accused for the killing of another or the infliction of serious
physical injuries under the circumstances therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is
banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional
circumstances, not being a punishable act, cannot be qualified by either
aggravating or mitigating or other qualifying circumstances, We cannot
accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the
physical injuries suffered by Lina Amparado and Arnold Amparado who
were caught in the crossfire as the accused-appellant shot the victim. The
Solicitor General recommends a finding of double frustrated murder
against the accused-appellant, and being the more severe offense,
proposes the imposition of reclusion temporal in its maximum period
pursuant to Article 48 of the Revised Penal Code. This is where we
disagree. The accused-appellant did not have the intent to kill the
Amparado couple. Although as a rule, one committing an offense is liable
for all the consequences of his act, that rule presupposes that the act
done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was
not committing murder when he discharged his rifle upon the deceased.
Inflicting death under exceptional circumstances is not murder. We
cannot therefore hold the appellant liable for frustrated murder for the
injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free
from any responsibility. Granting the fact that he was not performing an
illegal act when he fired shots at the victim, he cannot be said to be
entirely without fault. While it appears that before firing at the deceased,
he uttered warning words ("an waray labot kagawas,") 10 that is not
enough a precaution to absolve him for the injuries sustained by the
Amparados. We nonetheless find negligence on his part. Accordingly, we
hold him liable under the first part, second paragraph, of Article 365, that
is, less serious physical injuries through simple imprudence or
negligence. (The records show that Arnold Amparado was incapacitated
for one and one-half months; 11 there is no showing, with respect to Lina
Amparado, as to the extent of her injuries. We presume that she was
placed in confinement for only ten to fourteen days based on the medical
certificate estimating her recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we
therefore impose upon the accused-appellant arresto mayor (in its
medium and maximum periods) in its maximum period, arresto to being
the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The
accused-appellant is sentenced to four months and 21 days to six months
of arresto mayor. The period within which he has been in confinement
shall be credited in the service of these penalties. He is furthermore
ordered to indemnify Arnold and Lina Amparado in the sum of
P16,000.00 as and for hospitalization expense and the sum of P1,500.00
as and for Arnold Amparado's loss of earning capacity. No special
pronouncement as to costs.
IT IS SO ORDERED.
G.R. No. 123819 November 14, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
STEPHEN MARK WHISENHUNT, accused-appellant.
YNARES-SANTIAGO, J.:
Page 3 of 59
This is a direct appeal from the decision1 of the Regional Trial Court of
Pasig City, Branch 152, in Criminal Case No. 102687, the dispositive
portion of which states:
WHEREFORE, finding the accused Stephen Mark Whisenhunt guilty
beyond reasonable doubt of murder defined and penalized under Art.
248, Revised Penal Code, he is hereby sentenced to suffer the penalty
of reclusion perpetua, with the accessory penalties provided for by law,
to pay the heirs of the deceased the amount of P100,000.00 representing
actual expenses for the funeral services and wake for 5 days,
P3,000,000.00 by way of moral damages, exemplary damages in the
amount of P1,000,000.00 and attorney’s fees in the amount of
P150,000.00.
SO ORDERED.2
On November 19, 1993, accused-appellant was formally charged with
the murder of Elsa Santos-Castillo, under an Information which read:
That on or about September 24, 1993, in the Municipality of San Juan,
Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused did then and there wilfully, unlawfully
and feloniously, with intent to kill and taking advantage of superior
strength, attack, assault and use personal violence upon the person of
one Elsa "Elsie" Santos Castillo by then and there stabbing her with a
bladed weapon in different parts of her body, thereby inflicting upon her
mortal wounds which were the direct and immediate cause of her death
and thereafter outraged or scoffed her corpse by then and there
chopping off her head and different parts of her body.
CONTRARY TO LAW.3
The case was filed with the Regional Trial Court of Pasig City and was
raffled to Branch 152. On January 6, 1994, accused-appellant was
arraigned with the assistance of counsel de parte. He entered a plea of
not guilty.4
The evidence shows that accused-appellant and the deceased, Elsa
Santos-Castillo, also known as Elsie, were lovers. They met at the Apex
Motor Corporation where accused-appellant was the Manager while Elsa
was the Assistant Personnel Manager. Both accused-appellant and Elsa
were married, but they were estranged from their respective spouses. In
April 1993, Elsa resigned from Apex presumably to avoid the nasty
rumors about her illicit affair with accused-appellant.5 It appears,
however, that she continued her affair with accused-appellant even after
she resigned from Apex Motor Corporation.
On September 23, 1993, Demetrio Ravelo, an Apex employee assigned
to drive for accused-appellant, reported for work at 8:30 a.m. at the
latter’s condominium unit at the Platinum Condominium, Annapolis
Street, Greenhills, San Juan, Metro Manila.6 Accused-appellant ordered
him to fetch Elsa at her parents’ house in Blumentritt, Manila at 10:30
a.m. He found Elsa standing at a corner near her parent’s house, wearing
a violet-colored blouse with floral prints, and was carrying three bags ---
a paper bag, a violet Giordano bag and a thick brown leather bag with
the trademark of "Mitsubishi." He brought Elsa to accused-appellant’s
condominium unit.7
At 2:00 p.m., Elsa told Demetrio to go to the Apex office in Mandaluyong
to deliver a paper bag to Amy Serrano, the Personnel Manager. He
proceeded to the Apex office, and then returned to Platinum. Accused-
appellant asked him to stay because he had to drive Elsa home at 10:00
p.m. He waited until a little past 10:00 p.m. When he had not heard from
accused-appellant, he told Lucy, the housemaid, that he was going
home.8
The following day, Demetrio again reported at accused-appellant’s unit.
At around noon, Lucy asked if he had seen a kitchen knife which was
missing. He then overheard Lucy ask accused-appellant who told her that
the kitchen knife was in his bedroom. Demetrio saw accused-appellant
go inside the room and, shortly thereafter, hand the knife to Lucy.9
At 3:40 p.m., Lucy told Demetrio to buy cigarettes for accused-appellant.
He went out to buy the cigarettes and gave them to Lucy. At 5:00 p.m.,
accused-appellant told Demetrio to go home.10
On September 25, 1993, Demetrio reported at the Platinum
Condominium at around 8:00 a.m. He was allowed by accused-appellant
to go to Apex to follow up his salary. While he was there, Amy Serrano
asked him if Elsa was still in accused-appellant’s condominium unit.
Although Demetrio did not see Elsa there, he answered yes. Amy gave
him black plastic garbage bags which he turned over to accused-
appellant upon his return to the condominium. The latter then ordered
him to drive Lucy to Cubao and to go home to get some clothes, since
they were leaving for Bagac, Bataan. On the way to Cubao, Lucy told
Demetrio that she was going home. He dropped her off in front of the
Farmer’s Market. Thereafter, he proceeded to his house in Fairview,
Quezon City, to pick up some clothes, then returned to the condominium
at around 10:00 a.m.11
Accused-appellant asked him to check the fuel gauge of the car. He was
told to go to Apex to get a gas slip and then to gas up. At around noon,
he went back to the condominium. He had lunch outside at Goodah, then
returned to accused-appellant’s unit and stayed in the servants’
quarters.12
While Demetrio was in the servants’ quarters watching television,
accused-appellant came in. He asked Demetrio how long he wanted to
work for him. Demetrio replied that he was willing to work for him
forever, and expressed his full trust in him. Upon hearing this, accused-
appellant shed tears and embraced Demetrio. Then accused-appellant
said, "May problema ako, Rio." Demetrio asked what it was, and accused-
appellant told him that Elsa was dead. Demetrio asked, "Bakit mo siya
pinatay?"13 Accused-appellant answered that he did not kill Elsa, rather
she died of "bangungot".14
Demetrio suggested that Elsa’s body be autopsied, but accused-
appellant said that he had already beheaded her. He asked Demetrio if
he wanted to see the decapitated body, but the latter refused. The two
of them went to Shoppesville at the Greenhills Shopping Center and
bought a big bag with a zipper and rollers, colored black and
gray.15 Demetrio noticed that accused-appellant seemed nervous and his
eyes were teary and bloodshot.
When they returned to the condominium, accused-appellant asked
Demetrio to help him wrap the body in the black garbage bags. Demetrio
entered accused-appellant’s bathroom and found the dismembered
hands, feet, trunk and head of a woman. He lifted the severed head by
the hair and, when he lifted it, he saw Elsa’s face. He placed this in a black
trash bag. He helped accused-appellant place the other body parts in
three separate garbage bags. They packed all the garbage bags in the bag
with the zipper and rollers, which they had bought in Shoppesville. Then,
they brought the bag down and loaded it in the trunk of accused-
appellant’s car. After that, they boarded the car. Demetrio took the
wheel and accused-appellant sat beside him in front.16
Page 4 of 59
It was almost 2:00 p.m. when Demetrio and accused-appellant left the
condominium. Accused-appellant told Demetrio to drive around
Batangas and Tagaytay City. After leaving Tagaytay, they entered the
South Luzon Expressway and headed towards Sta. Rosa, Laguna. When
they were near Puting Kahoy and Silangan, accused-appellant told
Demetrio to turn into a narrow road. Somewhere along that road,
accused-appellant ordered Demetrio to stop the car.17
Accused-appellant alighted and told Demetrio to get the bag in the trunk.
Accused-appellant took the plastic bags inside the bag and dumped them
by the roadside. Then, accused-appellant returned the empty bag in the
trunk and boarded the car. He called Demetrio and said, "Tayo na Rio,
tuloy na tayo sa Bataan." It was already 6:30 p.m.18
Demetrio drove to the Sta. Rosa exit gate, along the South Luzon
Expressway, through EDSA and towards the North Luzon Expressway.
They stopped at a gasoline station to refuel. They then took the San
Fernando, Pampanga exit, and were soon en route to the Whisenhunt
family mansion in Bagac, Bataan.19
Before reaching Bagac, accused-appellant ordered Demetrio to stop the
car on top of a bridge. Accused-appellant told Demetrio to get off and to
throw a bag into the river. Later, they passed another bridge and
accused-appellant again told Demetrio to pull over. Accused-appellant
alighted and threw Elsa’s clothes over the bridge. On the way, Demetrio
noticed that accused-appellant took something from a bag, tore it to
pieces and threw it out of the window. When they passed Pilar, Bataan,
accused-appellant threw Elsa’s violet Giordano bag. As they reached the
road boundary of Bagac, accused-appellant wrung a short-sleeved dress
with violet and green stripes, and threw it on a grassy lot.20
It was about midnight when accused-appellant and Demetrio arrived at
the mansion. Demetrio was unable to sleep that night, as he was scared
that he might be the next victim.21
The next morning, at 11:00 a.m., accused-appellant ordered Demetrio to
clean the trunk of the car, saying, "Rio, linisan mo ang sasakyan para ang
compartment hindi babaho."22 At 1:00 p.m., accused-appellant and
Demetrio started off for Manila. As they passed a place called Kabog-
kabog, he saw accused-appellant take out an ATM card. Accused-
appellant burned the middle of the card, twisted it and threw it out of
the window. They arrived at the corner of EDSA and Quezon Avenue at
2:30 p.m. Demetrio asked accused-appellant if he can get off since he
wanted to go home to Fairview. Before Demetrio left, accused-appellant
told him, "Rio, you and your family can go on a vacation. I will give you
money." Accused-appellant then gave Demetrio P50.00 for his
transportation going to Fairview.23
When Demetrio got home, he immediately told his family what
happened. His wife told him to report the incident to Fiscal Joey Diaz.
Demetrio and his wife went to the house of Fiscal Diaz in Fairview to talk
to him.24
The following morning, September 27, 1993, Fiscal Diaz, Demetrio, his
wife and his brothers went to the Department of Justice. They were
referred to the National Bureau of Investigation, where Demetrio gave
his statement before Atty. Artemio Sacaquing, head of the Anti-
Organized Crime Division.25
Initially, Atty. Sacaguing could not believe what he heard and thought
Demetrio was exaggerating. He dispatched a team of NBI agents, headed
by Marianito Panganiban, to verify Demetrio’s report.26 Accompanied by
Demetrio, the team proceeded to Barangay Polong, Sta. Cruz, Sta. Rosa,
Laguna. There, they found a crowd of people gathered around the
mutilated parts of a human body along the road.27 The body parts had
been discovered by tricycle drivers. The Sta. Rosa Police, under Chief
Investigator SPO3 Alipio Quintos, was already conducting an
investigation. Agent Panganiban radioed Atty. Sacaguing in Manila that
Demetrio’s report was positive.28
The mutilated body parts were brought to the Lim de Mesa Funeral
Parlor in Sta. Rosa. Two NBI agents, together with Demetrio, went to the
house of Elsa’s family to inform them of her death. The NBI agents
accompanied Elsa’s two sisters, Amelia Villadiego and Elida Santos, to the
funeral parlor, where they identified the body parts as belonging to Elsa.
In the morning of September 28, 1993, accused-appellant was arrested
by operatives of the NBI as he drove up to his parking space at Apex
Motor Corporation.29 When Atty. Sacaguing approached and introduced
himself, accused-appellant became nervous and started to tremble.30
Accused-appellant was brought to the NBI in his car. When he arrived
there, Atty. Sacaguing informed him that it may be necessary to impound
the car since, based on Demetrio’s statement, the same was used in the
commission of the crime. Accused-appellant asked permission to retrieve
personal belongings from the car. After getting his things from the car,
accused-appellant opened the trunk to place some items inside. When
he opened the compartment, the people around the car moved away
because of the foul stench that emanated from inside. Atty. Sacaguing
inspected the interior of the trunk and found stains on the lawanit board
lying flat inside the compartment, which he suspected to be blood. Thus,
he instructed his agents to fetch a technician from the NBI Chemistry
Division to examine the stain.31
During Atty. Sacaguing’s interview of accused-appellant, he noticed
contusions on accused-appellant’s lower lip and cheek. As standard
procedure, and in order to rule out any accusation of violence on
accused-appellant on the part of the NBI agents, Atty. Sacaguing ordered
a medical examination of accused-appellant.32
The Medico-Legal Officer found contusions on accused-appellant’s left
periumbilical region, right elbow, left and right forearms and right leg.33
That same afternoon, before the close of office hours, accused-appellant
was brought to the Department of Justice for inquest.34 However,
accused-appellant moved that a preliminary investigation be conducted,
and signed a waiver of the provisions of Article 125 of the Revised Penal
Code. Hence, he was detained at the NBI.35
On September 29, 1993, armed with a search warrant,36 the NBI agents
conducted a search of the condominium unit of accused-appellant. They
recovered hair strands from underneath the rubber mat and rugs inside
accused-appellant’s bathroom.37 In accused-appellant’s bedroom, they
found bloodstains on the bedspread and covers. They also found a pair
of Topsider shoes with bloodstains, a bottle of Vicks Formula 44 cough
syrup, and some more hair strands on the lampshade.38
Later that day, Demetrio Ravelo accompanied some NBI agents to retrace
the route he took with accused-appellant going to Bataan, with the
objective of retrieving the items thrown away by accused-appellant. They
were able to recover a violet bag, one brown sandal and a shirt with violet
and green floral prints,39 which were brought to the NBI office. Amelia
Santos Villadiego, Elsa’s sister, was summoned to identify the items.40
In the meantime, Caroline Y. Custodio, Supervising Forensic Biologist of
the NBI, who conducted comparative examinations between the hair
Page 5 of 59
specimens found in accused-appellant’s bathroom and hair samples
taken from the victim while she lay in state, found that "the questioned
hair specimen showed similarities to the hair taken from the victim."41
Custodio further reported that the bloodstains on the bed cushion cover,
bedspread and Topsider shoes, all found inside accused-appellant’s
bedroom, gave positive results for human blood, showing reactions of
Group "B".42 The bloodstains on the plywood board taken from accused-
appellant’s vehicle were also examined and found to give positive results
for human blood showing reactions of Group "B".43 On the other hand,
the examination of blood taken from the victim likewise showed
reactions of Group "B".44
Dr. Ronaldo B. Mendez, the Medico-Legal Officer who conducted the
autopsy, concluded that the cause of death of Elsa Santos Castillo were
stab wounds.45 Dr. Mendez found one stab wound on the right breast
which penetrated the right lung. He also found two stab wounds under
the left breast which penetrated the diaphragm and abdominal cavity,
and also penetrated the right portion of the liver.46 More particularly, the
autopsy yielded the following postmortem findings:
Body in moderately advanced stage of decomposition.
Head, decapitated, level above 4th cervical vertebra; both hands severed
cutting completely the lower ends of both radius and ulna; both legs,
disarticulated at knee joints and cut-off with both patellar bones,
missing; both feet, disarticulated at the ankle joints and cut-off; all soft
tissues of both thighs and perineum, removed, exposing completely the
femoral bones and partially the pelvic bone,
Incised wounds: 19.5 cms., left axillary area; 55.0 cms., thoraco-
abdominal area, along median line, with the abdominal incision involving
the whole thickness and the thoracic incision involving the soft tissues
and cutting the sternum from the xiphoid process up to the level of the
third cartilage; from the 3rd cartilage up to the lower border of the neck.
Abdominal organs, removed from the abdominal cavity.
Contusions: 26.0 x 16.5 cms., face, more on the left side involving the
forehead, temporal, nasal, orbital and maxillary areas; 25.0 x 11.0 cms.,
deltoid area, extending down to the upper 2/3, arm, left.
Incised Wound, 3.0 cms., neck area, along anterior median line.
Hematoma, scalp, massive, temporo-parietal, left.
STAB WOUNDS:
1. 1.8 cms., elliptical, clean-cut edges, oriented obliquely with sharp
infero-lateral extremity and blunt supero-medial extremity, located at
the mammary area, right; 3.0 cms., from the anterior median line,
directed backwards, downwards and laterally, involving the soft tissues,
cutting completely the 4th cartilage, right side, into the right thoracic
cavity, penetrating the lower of the right lung with an approximate depth
8.5 cms.
2. 0.8 cm., elliptical, clean-cut edges, oriented almost vertically, with
sharp inferior extremity and blunt superior extremity, located at the
inframammary area, left, 1.1 cms., from the anterior median line,
directed backwards, downwards and medially, involving the soft tissues
only with an approximate depth of 2.0 cms.
3. 2.0 cms., elliptical, clean-cut edges, oriented obliquely, with sharp
infero-lateral extremity and blunt supero-medial extremity, located at
the inframammary area, left, 2.2 cms., from the anterior median line,
directed backwards, downwards, and from left to right, involving the soft
tissues, into the left thoracic cavity, perforating the diaphragm, into the
abdominal cavity, penetrating the right lobe of the liver with an
approximate depth 10.0 cms.
Brain, markedly softened and reduced to grayish white, pultaceous mass.
Other visceral organs, putrified,
Stomach is almost empty.
CAUSE OF DEATH: --- STAB WOUNDS.47
In his defense, accused-appellant alleged that he stayed home on
September 23, 1993 because he was not feeling well. He denied that he
asked Demetrio Ravelo to fetch Elsa. He refuted Demetrio’s testimony
that accused-appellant asked him to buy cigarettes, or that accused-
appellant told him to go home at 5:00 p.m.. Rather, accused-appellant
maintained that he did not see Demetrio at any time in the afternoon of
September 24, 1993.48
On September 25, 1993, accused-appellant alleged that he was feeling
better, hence, told Demetrio that they were to leave for Bagac, Bataan
that afternoon. They left the condominium at about 1:00 to 1:30 p.m.
and proceeded straight to Bagac. When they arrived at Bagac, accused-
appellant went straight to the kitchen and met his mother, father, aunt
and grandmother. Demetrio got the things out of the car and then asked
accused-appellant’s permission to take the car to go to the town.49
Accused-appellant’s mother, Mrs. Nieves Whisenhunt, testified that
accused-appellant arrived at their beach house in Bagac, Bataan on
September 25, 1993 at 5:00 p.m. At 7:00 the next morning, she saw
accused-appellant clad in beach attire. Later that day, she and her
husband had lunch at the clubhouse, which was about three to four
minutes drive from their house. When they returned home at 2:00 p.m.,
accused-appellant and his driver, Demetrio, had already left.50 This was
corroborated by accused-appellant’s aunt, Ms. Frances Sison.51
Accused-appellant claimed that he went jet-skiing in the morning of
September 25, 1993. He alleged that the water was choppy and caused
his jet-ski to lose control. As a result, he suffered bruises on his chest and
legs. Thereafter, he went home, cleaned up, changed clothes and rested.
Later, as he was going down the stairs, he slipped and extended his arm
to stop his fall. He had lunch with this family. At 1:30 p.m., he and
Demetrio left Bagac for Manila.52
According to accused-appellant, he first learned of Elsa’s death when he
was arrested by the NBI on September 28, 1993.53 He denied having
anything to do with her death, saying that he had no reason to kill her
since he was in love with her.54 Sometime during his relationship with
Elsa, he claimed having received in the mails two anonymous letters. The
first one reads:
Salamat sa pagpapahiram mo ng sasakyan at driver. Pero masyado kang
pakialamero, Steve. Walanghiya ka. Para kang demonyo. Pinakialaman
mo ang ‘di sa ‘yo. Lintik lang ang walang ganti. Matitiyempuhan din kita.
Putang ina mo.55
The second letter says:
Page 6 of 59
Steve,
Ang kay Pedro kay Pedro. Kapag pinakialaman ay kay San Pedro ang
tungo. Mahal mo ba ang pamilya mo? Iniingatan mo ba ang pangalan
mo? Nakakasagasa ka na.56
At first, accused-appellant ignored the letters. But when he told Elsa
about them, she got very upset and worried. She said the letters came
from Fred, her estranged husband.57
Ms. Frances Sison, accused-appellant’s aunt, testified that she and her
mother visited accused-appellant at 3:00 p.m. on September 23, 1993.
She went inside the bedroom and talked to accused-appellant for about
30 minutes. While they were there, Ms. Sison testified that she did not
see anyone else in the bedroom. She also said the door of the bathroom
inside the room was open, and there was nobody inside. The next day, at
4:00 p.m., she went back to visit accused-appellant. Again, they went
inside accused-appellant’s bedroom and stayed there for one hour. The
door of the bathroom was open, and she saw that there was nobody
inside. The following morning, they passed by the condominium before
proceeding to Bagac, Bataan. They went inside accused-appellant’s
bedroom and talked to him. As in the last two occasions, Ms. Sison saw
through the open door of the bathroom that there was no one inside.58
Theresa Whisenhunt, accused-appellant’s sister-in-law, testified that
between December 21, 1991 and January 15, 1992, and again from the
middle of April, 1992 to May 15, 1992, she slept in the bedroom
subsequently occupied by accused-appellant in the Platinum
Condominium; that she regularly has her menstruation around the end
of every month; and that her blood type is "B".59
On January 31, 1996, the trial court promulgated the appealed judgment,
convicting accused-appellant of the crime of murder, sentencing him to
suffer the penalty of reclusion perpetua, and ordering him to pay the
heirs of the deceased actual damage, moral damages, exemplary
damages and attorney’s fees.60
Accused-appellant interposed an appeal from the adverse decision of the
trial court, alleging that:
I. THE LOWER COURT ERRED IN CONVICTING ACCUSED OF THE CRIME
CHARGED;
II. THE LOWER COURT ERRED IN FINDING THAT THE PROSECUTION WAS
ABLE TO PRESENT ENOUGH CIRCUMSTANTIAL EVIDENCE TO SUPPORT
THE CONCLUSION THAT THE ACCUSED IS GUILTY OF THE CRIME
CHARGED;
III THE LOWER COURT ERRED IN REJECTING, DISREGARDING AND/OR
NOT GIVING CREDENCE TO THE DEFENSE OF THE ACCUSED.61
Much of the evidence on accused-appellant’s complicity was elicited
from Demetrio Ravelo, the so-called "prosecution star witness."62 On the
premise that accused-appellant’s guilt or innocence depends largely on
the weight of his testimony, this Court has carefully scrutinized and
examined his version of the events, and has found that Demetrio Ravelo’s
narrative is both convincing and consistent in all material points.
Before accused-appellant confessed to Demetrio Ravelo what had
happened to Elsa Castillo, he first asked the latter how long he was willing
to work for him, and how far his loyalty will go. This was logical if accused-
appellant wanted to ensure that Demetrio would stand by his side after
learning what he was about to reveal. More importantly, Demetrio’s
description of Elsa’s dismembered body, as he found it in accused-
appellant’s bathroom, perfectly jibed with the appearance of the
mutilated body parts, as shown in the photographs presented by the
prosecution.63
Likewise, the mutilated body parts, as well as the other items thrown by
accused-appellant along the road to Bataan, were found by the NBI
agents as Demetrio pointed, which confirms that, indeed, the latter
witnessed how accused-appellant disposed of Elsa’s body and personal
belongings one by one.
All in all, the testimony of Demetrio Ravelo bears the ring of truth and
sincerity. The records show that he did not waver even during lengthy
and rigorous cross-examination. In fact, the trial court gave full faith and
credit to his testimony, stating:
The Court had opportunity to observe the demeanor of Demetrio Ravelo
when he took the witness stand on several occasions. He was extensively
cross-examined by one of the defense counsel and he withstood the
same creditably. Demetrio Ravelo is a very credible witness and his
testimony is likewise credible.64
This Court has consistently ruled that factual findings of the trial court
deserve the highest respect. This is based on the fact that the trial judge
is in the best position to assess the credibility of the witnesses who
appeared before his sala as he had personally heard them and observed
their deportment and manner of testifying during the trial.65Especially,
where issues raised involve the credibility of witnesses, the trial court’s
findings thereon will not be disturbed on appeal absent any clear
showing that it overlooked, misunderstood or misapplied some facts, or
circumstances of weight or substance, which could have affected the
result of the case.66 Succinctly put, findings of fact of the trial court
pertaining to the credibility of witnesses command great weight and
respect since it had the opportunity to observe their demeanor while
they testified in court.67
Perhaps more damning to accused-appellant is the physical evidence
against him. The findings of the forensic biologist on the examination of
the hair samples and bloodstains all confirm Elsa’s death inside accused-
appellant’s bedroom. On the other hand, the autopsy report revealed
that Elsa was stabbed at least three times on the chest. This, taken
together with Demetrio’s testimony that accused-appellant kept the
kitchen knife inside his bedroom on September 24, 1993, leads to the
inescapable fact that accused-appellant stabbed Elsa inside the bedroom
or bathroom.
Physical evidence is a mute but eloquent manifestation of truth, and it
ranks high in the hierarchy of our trustworthy evidence.68 For this reason,
it is regarded as evidence of the highest order. It speaks more eloquently
than a hundred witnesses.69While it may be true that there was no
eyewitness to the death of Elsa, the confluence of the testimonial and
physical evidence against accused-appellant creates an unbroken chain
of circumstantial evidence that naturally leads to the fair and reasonable
conclusion that accused-appellant was the author of the crime, to the
exclusion of all others. Circumstantial evidence may be resorted to in
proving the identity of the accused when direct evidence is not available,
otherwise felons would go scot-free and the community would be denied
proper protection. The rules on evidence and jurisprudence sustain the
conviction of an accused through circumstantial evidence when the
following requisites concur: (1) there must be more than one
circumstance; (2) the inference must be based on proven facts; and (3)
Page 7 of 59
the combination of all circumstances produces a conviction beyond
doubt of the guilt of the accused.70
In the case at bar, the following circumstances were successfully proven
by the prosecution without a shadow of doubt, to wit: that Elsa Santos
Castillo was brought to accused-appellant’s condominium unit on
September 23, 1993; that on September 24, 1993, accused-appellant’s
housemaid was looking for her kitchen knife and accused-appellant gave
it to her, saying that it was in his bedroom; that on September 25, 1993,
accused-appellant and Demetrio Ravelo collected the dismembered
body parts of Elsa from the bathroom inside accused-appellant’s
bedroom; that accused-appellant disposed of the body parts by a
roadside somewhere in San Pedro, Laguna; that accused-appellant also
disposed of Elsa’s personal belongings along the road going to Bagac,
Bataan; that the mutilated body parts of a female cadaver, which was
later identified as Elsa, were found by the police and NBI agents at the
spot where Demetrio pointed; that hair specimens found inside accused-
appellant’s bathroom and bedroom showed similarities with hair taken
from Elsa’s head; and that the bloodstains found on accused-appellant’s
bedspread, covers and in the trunk of his car, all matched Elsa’s blood
type.
Accused-appellant makes capital of the fact that the Medico-Legal
Officer, Dr. Mendez, did not examine the pancreas of the deceased
notwithstanding Demetrio’s statement that, according to accused-
appellant, Elsa died of "bangungot," or hemorrhage of the pancreas.
Because of this, accused-appellant insists that the cause of death was not
adequately established. Then, he relied on the controverting testimony
of his witness, lawyer-doctor Ernesto Brion, who was himself a Medico-
Legal Officer of the NBI for several years, to the effect that the autopsy
report prepared by Dr. Mendez was unreliable and inconclusive. The trial
court noted, however, that Dr. Brion was a biased witness whose
testimony cannot be relied upon because he entered his appearance as
one of the counsel for accused-appellant and, in such capacity,
extensively cross-examined Dr. Mendez. Accused-appellant counters
that there is no prohibition against lawyers giving testimony. Moreover,
the trial court’s ruling would imply that lawyers who testify on behalf of
their clients are presumed to be lying.
By rejecting the testimony of Dr. Brion, the trial court did not mean that
he perjured himself on the witness stand. Notably, Dr. Brion was
presented as expert witness. His testimony and the questions
propounded on him dealt with his opinion on the probable cause of
death of the victim. Indeed, the presentation of expert testimony is one
of the well-known exceptions to the rule against admissibility of opinions
in evidence.71 In like manner, Dr. Mendez was presented on the stand to
give his own opinion on the same subject. His opinion differed from that
of Dr. Brion, which is not at all unusual. What the trial court simply did
was to choose which --- between two conflicting medico-legal opinions -
-- was the more plausible. The trial court correctly lent more credence to
Dr. Mendez’s testimony, not only because Dr. Brion was a biased witness,
but more importantly, because it was Dr. Mendez who conducted the
autopsy and personally examined Elsa’s corpse up close.
In any event, the foregoing does not detract from the established fact
that Elsa’s body was found mutilated inside accused-appellant’s
bathroom. This clearly indicated that it was accused-appellant who cut
up Elsa’s body to pieces. Naturally, accused-appellant would be the only
suspect to her killing. Otherwise, why else would he cut up Elsa’s body as
if to conceal the real cause of her death?
As already stated above, Demetrio’s testimony was convincing. Accused-
appellant attempts to refute Demetrio’s statements by saying that he
had repeatedly reprimanded the latter for discourteous and reckless
driving, and that he had already asked the latter to tender his resignation.
Thus, accused-appellant claims that Demetrio imputed Elsa’s death on
him in order to get back at him. This Court finds the cruel treatment by
an employer too flimsy a motive for the employee to implicate him in
such a gruesome and hideous crime. Rather than entertain an accusation
of ill-motive and bad faith on Demetrio Ravelo, this Court views his act of
promptly reporting the incident to his family and, later, to the authorities,
as a genuine desire to bring justice to the cruel and senseless slaying of
Elsa Santos Castillo, whom he knew well.
Accused-appellant also argues that his arrest was without a warrant and,
therefore, illegal. In this regard, the rule is settled that any objection
involving a warrant of arrest or procedure in the acquisition by the court
of jurisdiction over the person of an accused must be made before he
enters his plea, otherwise the objection is deemed waived.72 In other
words, it is too late in the day for accused-appellant to raise an issue
about his warrantless arrest after he pleaded to a valid information and
after a judgment of conviction was rendered against him after a full-
blown trial.
Accused-appellant presented in evidence two supposedly threatening
letters which, according to Elsa, were written by the latter’s husband.
There is nothing in these letters which will exculpate accused-appellant
from criminal liability. The threats were directed at accused-appellant,
not Elsa. The fact remains that Elsa was last seen alive in accused-
appellant’s condominium unit, and subsequently discovered dead in
accused-appellant’s bathroom. Surely, the place where her dead body
was found does not support the theory that it was Fred Castillo who was
probably responsible for her death.
We do not agree with the trial court that the prosecution sufficiently
proved the qualifying circumstance of abuse of superior strength. Abuse
of superiority is present whenever there is inequality of forces between
the victim and the aggressor, assuming a situation of superiority of
strength notoriously advantageous for the aggressor and selected or
taken advantage of by him in the commission of the crime.73 The fact that
the victim was a woman does not, by itself, establish that accused-
appellant committed the crime with abuse of superior strength. There
ought to be enough proof of the relative strength of the aggressor and
the victim.74
Abuse of superior strength must be shown and clearly established as the
crime itself.75 In this case, nobody witnessed the actual killing. Nowhere
in Demetrio’s testimony, and it is not indicated in any of the pieces of
physical evidence, that accused-appellant deliberately took advantage of
his superior strength in overpowering Elsa. On the contrary, this Court
observed from viewing the photograph of accused-appellant76 that he
has a rather small frame. Hence, the attendance of the qualifying
circumstance of abuse of superior strength was not adequately proved
and cannot be appreciated against accused-appellant.
However, the other circumstance of outraging and scoffing at the corpse
of the victim was correctly appreciated by the trial court. The mere
decapitation of the victim’s head constitutes outraging or scoffing at the
corpse of the victim, thus qualifying the killing to murder.77 In this case,
accused-appellant not only beheaded Elsa. He further cut up her body
like pieces of meat. Then, he strewed the dismembered parts of her body
in a deserted road in the countryside, leaving them to rot on the ground.
The sight of Elsa’s severed body parts on the ground, vividly depicted in
the photographs offered in evidence, is both revolting and horrifying. At
the same time, the viewer cannot help but feel utter pity for the sub-
human manner of disposing of her remains.
Page 8 of 59
In a case with strikingly similar facts, we ruled:
Even if treachery was not present in this case, the crime would still be
murder because of the dismemberment of the dead body. One of the
qualifying circumstances of murder under Article 248, par. 6, of the
Revised Penal Code is "outraging or scoffing at (the) person or corpse" of
the victim. There is no question that the corpse of Billy Agotano was
outraged when it was dismembered with the cutting off of the head and
limbs and the opening up of the body to remove the intestines, lungs and
liver. The killer scoffed at the dead when the intestines were removed
and hung around Victoriano’s neck as a necklace, and the lungs and liver
were facetiously described as "pulutan."78
Hence, the trial court was correct in convicting accused-appellant of the
crime of murder, qualified by outraging and scoffing at the victim’s
person or corpse.79 This circumstance was both alleged in the
information and proved during the trial. At the time of its commission,
the penalty for murder was reclusion temporal maximum to death.80 No
aggravating or mitigating circumstance was alleged or proved; hence, the
penalty shall be imposed in its medium period.81 Therefore, the trial
court’s imposition of the penalty of reclusion perpetua was correct, and
need not be modified.
However, the damages awarded by trial court should be modified. Elida
Santos, Elsa’s sister, testified that the funeral expenses was only
P50,000.00.82 Hence, the trial court erred when it awarded the amount
of P100,000.00. Basic is the jurisprudential principle that in determining
actual damages, the court cannot rely on mere assertions, speculations,
conjectures or guesswork but must depend on competent proof and on
the best obtainable evidence of the actual amount of the loss. Actual
damages cannot be presumed but must be duly proved with reasonable
certainty.83
The award of moral damages in murder cases is justified because of the
physical suffering and mental anguish brought about by the felonious
acts, and is thus recoverable in criminal offenses resulting in death.84 It is
true that moral damages are not intended to enrich the victim’s heirs or
to penalize the convict, but to obviate the spiritual sufferings of the
heirs.85 Considering, however, the extraordinary circumstances in the
case at bar, more particularly the unusual grief and outrage suffered by
her bereaved family as a result of the brutal and indecent mutilation and
disposal of Elsa’s body, the moral damages to be awarded to them should
be more than the normal amount dictated by jurisprudence. However,
the amount of P3,000,000.00 awarded by the trial court as moral
damages is rather excessive. The reasonable amount is P1,000,000.00
considering the immense sorrow and shock suffered by Elsa’s heirs.
The award of attorney’s fees of P150,000.00 was duly proved,86 and thus
should be affirmed.
Finally, the heirs of Elsa Santos Castillo should be indemnified for her
death. In murder, the civil indemnity has been fixed by jurisprudence at
P50,000.00. The grant of civil indemnity in murder requires no proof
other than the fact of death as a result of the crime and proof of accused-
appellant’s responsibility therefor.87
WHEREFORE, the decision of the Regional Trial Court of Pasig City, Branch
152, in Criminal Case No. 102687, finding accused-appellant guilty
beyond reasonable doubt of murder, and sentencing him to suffer the
penalty of reclusion perpetua, is AFFIRMED with the following
MODIFICATIONS: Accused-appellant is ORDERED to pay the heirs of Elsa
Santos Castillo actual damages in the amount of P50,000.00; civil
indemnity in the amount of P50,000.00; moral damages in the amount
of P1,000,000.00; exemplary damages in the amount of P1,000,000.00;
and attorney’s fees in the amount of P150,000.00. Costs against accused-
appellant.
SO ORDERED.
G.R. No. 139542 June 21, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
INOCENCIO GONZALEZ, JR., accused-appellant.
DISSENTING OPINION
GONZAGA-REYES, J.:
Many unfortunate tragedies would not have happened if the
improvident use of a firearm did not exacerbate a simple altercation over
traffic. This is one of them.
On a day intended to pay homage to the dead, a pregnant woman was
shot to death in the course of her husband’s altercation with the
accused-appellant and his son along the Garden of Remembrance within
the Loyola Memorial Park in Marikina. The trial court found the accused
guilty of the complex crime of murder and two counts of frustrated
murder and accordingly sentenced him to death. This case is before us
on automatic review.
The details of what actually transpired in the few seconds immediately
preceding the shooting are controverted by both parties but the events
leading to this tragedy are not disputed.
In the afternoon of October 31, 1998 at about 2:30 p.m. both the families
of the private complainant Noel Andres and that of the accused-
appellant Inocencio Gonzalez were on their way to the exit of the Loyola
Memorial Park. The appellant was driving a white Isuzu Esteem with his
grandson and three housemaids, while the private complainant was
driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two
year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar
Valdez. At the intersection near the Garden of Remembrance, while the
accused-appellant Gonzalez was turning left towards the exit and the
complainant Noel Andres was headed straight along the road to the exit
their two vehicles almost collided. Noel Andres was able to timely step
on the brakes. The appellant continued driving along his way while Noel
Andres drove behind the appellant’s vehicle for some time and cut him
off when he found the opportunity to do so.1 Noel Andres then got out
of his vehicle and knocked on the appellant’s car window.2 This is as far
as their versions of the incident coincide.
The prosecution’s version of the incident is that Noel Andres calmly told
the appellant to be careful with his driving and informed the latter that
he, Andres, is with his family and to this Gonzalez allegedly replied,
"Accidents are accidents, what’s your problem." Andres stated that he
saw the appellant turning red in anger so he decided to go back to his
vehicle when he was blocked by the appellant’s son who said, "Anong
problema mo sa erpat ko." Andres testified that he felt threatened and
so he immediately boarded his vehicle, sat at the driver’s seat, closed the
door, and partially opened the car window just wide enough to talk back
to appellant’s son, Dino. Suddenly, one of his passengers said "Binaril
kami". He turned to his wife Feliber Andres and saw her bloodied and
unconscious. He turned around and saw his son Kenneth and nephew
Kevin were also wounded. Andres admitted in court that he and Dino
Page 9 of 59
were shouting at each other so that he did not hear the shot. Andres then
got out of his vehicle to warn the appellant not to flee. He then took the
wounded members of his family to the exit where there was an
ambulance standing by. The three were then taken to the Sta. Monica
Hospital and were later transferred to the Quezon City Medical Center.
The defense’s version of the incident is that Andres cut the appellant’s
path by positioning his FX obliquely along the appellant’s lane from the
latter’s left side. Andres then got out of his vehicle, stood beside the
appellant’s car window, and repeatedly cursed the appellant, "Putang ina
mo, ang tanda-tanda mo na hindi ka pa marunong magmaneho. Ang
bobo-bobo mo."3 The appellant stayed inside his car and allegedly
replied, "Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang."
The appellant Gonzalez and another witness for the defense, Quidic,
testified that Noel Andres went back to his vehicle to move it in such a
way that it is straight in front of the appellant’s car. Andres allegedly got
out of his vehicle again and continued shouting and cursing at the
appellant.4 Dino, the appellant’s son, who rode in another vehicle
decided to go back when he did not see his father’s car behind him. When
Dino arrived at the scene he confronted Andres and the two had an
altercation. Both Dino and the appellant stated that Andres remained
outside his vehicle during the altercation with Dino. When Andres
suddenly reached for something inside his vehicle, Dino froze on the spot
where he stood. This prompted the appellant to get his gun from the
glove compartment and feeling that his son was threatened he got out
of his car ready to shoot. When he saw that Andres did not have a
weapon he put down his hand holding the gun. This is when the
appellant’s daughter Trisha who was riding in Dino’s car arrived at the
scene, walked past Dino and Andres, and pushed the appellant away. She
hugged her father and in the process held his hand holding the gun. The
appellant tried to free his hand and with Trisha’s substantial body weight
pushing against him the appellant lost his balance and the gun
accidentally fired. The accused stated that he did not know he shot
somebody until the private complainant’s sister-in-law, Francar Valdez,
got out of the vehicle carrying a bloodied small boy. The defense claims
that the appellant did not try to flee and even told the complainant’s
sister-in-law to take the wounded to the hospital.
On November 4, 1998 an Information for the complex crime of Murder,
Double Frustrated Murder and Attempted Murder was filed against
herein accused-appellant:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously
with intent to kill, attack, assault and employ personal violence by means
of treachery and abuse of superior strength upon the person of Noel
Andres y Tomas, by then and there shooting him with a Glock cal. 9mm
pistol but instead hitting one Feliber Andres y Ordoño, on the left back
portion of her head, thereby inflicting upon her serious and mortal
wound which directly caused her death, as well as hitting John Kenneth
Andres y Ordoño and Kevin Valdez y Ordoño physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of some
cause or causes, independent of their will, that is, the timely and able
medical assistance rendered to John Kenneth Andres y Ordoño and Kevin
Valdez y Ordoño to their damage and prejudice as well as to the damage
and prejudice of the heirs of Feliber Andres y Ordoño."
On arraignment the accused-appellant pleaded "not guilty" to the crimes
charged.
The case records show that Feliber Andres, the wife of Noel Andres did
not die instantaneously. She lived to give birth to a baby girl5 by caesarian
section and died the following morning on November 1, 1998. The
Autopsy Report6 states:
"FINDINGS: Fairly nourished, fairly developed female cadaver, with post
mortem lividity. Conjunctivae are pale. Lips and nail beds are cyanotic.
Surgical incisions were noted at left tempero-parietal region. Surgical
incisions is also noted at the abdominal region secondary to a caesarian
section.
HEAD: (1) gunshot wound, point of entry, left fronto-temporal region,
measuring 1 by 0.9 cm, 9 cm from the anterior midline, with a uniform
abraided collar measuring 0.2 cm., directed posteriorwards, slightly
downwards, and medialwards, fracturing the frontal, and left temporal
bones, lacerating the left cerebral hemisphere, with a deformed slug
fragment embedded and recovered at the posterior lobe of the left
cerebral hemisphere. (2) hematoma, left orbital region, measuring 4.5 by
2 cm, 4 cm from the anterior midline. There are subdural and
subarachnoidal hemorrages. Stomach contains 1 ½ glassful of partially
digested food particles mostly rice and meaty material.
CONCLUSION: Cause of death is gunshot wound on the head."
Kenneth and Kevin were treated for extraction of metallic fragments on
their faces. They were discharged from the hospital six days later or on
November 6, 1998.
On June 25, 1999 the trial court rendered judgement finding that the
shooting was attended by the qualifying circumstance of treachery and
held the appellant guilty of the complex crime of murder for the death of
Feliber Andres and for two counts of frustrated murder for the injuries
sustained by Kenneth Andres and Kevin Valdez and sentenced the
appellant to the maximum of the imposable penalty which is death. The
trial court held:
"Beforehand, the Court takes note of the judicial admissions on the
verbal declarations of the accused that the court ‘a quo’ has jurisdiction
over the case; that he owns the black Gluck 9 mm. automatic pistol; that
the said gun will never fire even if he drops it; that only one bullet was
fired from his gun; and that the victim Feliber Andres is already dead.
With this exegesis and the declarations in open court of the eyewitness
of both the prosecution and some of the defense, there is no real dispute
on the antecedent facts showing that the accused fired on Noel Andres
but instead hit and caused the fatal injuries to the victims John Kenneth
Andres, Kevin Valdez and Feliber Andres resulting to the ultimate death
of the latter. The court takes further judicial admissions of the accused
made in their memorandum demonstrating the existence of five (5)
sequences of events leading to the death of Feliber Andres and the
wounding of John Kenneth Andres and Kevin Valdez which are as follows:
First is when Noel Andres overtook the car driven of the accused and cut
cross his path; Second is when Noel Andres alighted from his vehicle and
confronted Inocencio; Third is when Noel had an argument with Dino
Gonzalez, the son of the accused; Forth is when, Inocencio seeing his son
having confrontation with Noel, got his gun to protect Dino; and Fifth is
when Inocencio had a struggle with his daughter. Trisha Gonzalez, who
tried to reach for the gun and as a result of which Inocencio lost his
balance and as he was falling backward to his side, his right arm holding
the gun hit the rear window of the Tamaraw FX van and the gun
accidentally went off hitting the victim, who were all then inside the van.
The court likewise take judicial notice on the feature of the automatic
pistol used in this case which is capable of unquestionable demonstration
Page 10 of 59
or ought to be known to judges because of their judicial functions.
Practically, the stages before an automatic firearm would be capable of
firing are as follows: 1) the loading of a bullet into the chamber of the
gun; 2) the cocking of the hammer, if uncocked; 3) the releasing of the
safety pin; 4) the pressing of the trigger to unleash the hammer so that
the firing pin will hit the cartridge to propel the bullet out to hit the
target. Realistically, it demonstrates that a gun will not fire even if the
bullet is loaded in its chamber if the hammer is uncocked; or even if
cocked if the safety pin is engaged; or even if the safety pin is disengaged
if the trigger will not be pressed. However, even if the gun is fired if it is
not aimed and leveled to the target, the purpose of firing it shall not be
achieved. Contrarily, once a gun is drawn against a person, the means
methods and forms employed for its execution is already conceived. And
once it is tended directly and specifically to insure its execution, it
consequently produces the conscious and deliberate intention. Finally if
all the acts of execution had been effectively done without risk on the
part of the offender arising from any defense coming from the offended
party, treachery results. In brief, there is treachery when the offender
commits any crime against persons, employing means, methods and
forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from any defense which the
offended party might make (People vs. Mesa 276 SCRA 407; People vs.
Carlos Patrolla, Jr. G. R. No. 112445, March 7, 1996). To appreciate
treachery two (2) conditions must be present, to wit: 1) the employment
of means of execution that give the person attacked no opportunity to
defend himself or retaliate; and 2) the means of execution were
deliberately or consciously adopted. (People vs. Azugue, 268 SCRA 711;
People vs. Peña, G. R. No. 116022, July 1, 1998, p. 1)
In the case at bar and guided with the above-quoted doctrinal cases,
logically, the accused is positive of the crime charged against him. When
he alighted with a drawn gun to protect his son and released all the safety
measures of his gun as he fired and missed at Noel who was then
unarmed, but instead hit Kevin Valdez, John Kenneth Andres and Feliber
Andres which resulted to the death of the latter, demonstrate that the
accused has executed the two (2) conditions to generate treachery
enough to qualify the crime committed to murder."
XXXX XXXXX XXXX
"WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt
of the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic
Act No. 7659 in relation to Article 48 of the Revised Penal Code and is
sentenced to suffer the maximum penalty of Death by lethal injection.
The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber
Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred
for the injuries sustained by the deceased Feliber Andres and the amount
of P23,622.58 representing the expenses for the untimely delivery of the
child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses
for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused to
his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney’s fees and a fee
of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained
by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
SO ORDERED."
In his appeal, Gonzalez submits the following assignments of error:
"1. The trial court committed reversible error when it found that
treachery was present.
2. The trial court committed reversible error when it presumed that there
was treachery by taking judicial notice of the feature of the automatic
pistol involved in this case.
3. The trial court committed reversible error when it violated the
constitutional right of the accused-appellant to due process when it took
judicial notice of the feature of the automatic pistol involved in this case
without notice.
4. The trial court committed reversible error when it found Accused-
Appellant guilty beyond reasonable doubt of the complex crime of
Murder with Double Frustrated Murder.
5. The trial court committed reversible error when it failed to appreciate
the mitigating circumstances of passion or obfuscation, lack of intention
to commit so grave a wrong, provocation or threat on the part of the
offended party immediately preceded the act, incomplete defense of
relative, and voluntary surrender.
6. The trial court committed reversible error when it failed to find that
the shooting incident was accidental.
7. The trial court committed reversible error when it gave credence to
the testimonies of prosecution witnesses Elmer Ramos and Moises
Castro.
8. The trial court committed reversible error when it disregarded the
basic principle that the accused is presumed innocent and his guilt must
be proven beyond reasonable doubt.
9. The trial court committed reversible error when it ordered Accused-
Appellant to pay for the civil liabilities."
Page 11 of 59
The appellant seeks a reversal and prays that judgment be rendered
exempting him from criminal and civil liabilities. Appellant declared that
he had no intention to shoot Noel Andres much less his wife nor the
children. He lost his balance when his daughter Trisha approached and
pushed him backwards to stop him from joining Dino and Noel Andres
but the appellant tried to free his right hand holding the gun and it
accidentally fired. The single bullet fired hit the last window on the left
side of the Tamaraw FX. The appellant claims that he did not see the
passengers inside the vehicle at the time of the shooting. This is
corroborated by the testimony of two witnesses for the prosecution who
testified that the windows of Andres’ vehicle are heavily tinted so that a
person outside the vehicle would not be able to see if there are people
inside. It is also argued that had the appellant intended to shoot Noel
Andres he could have simply done so by shooting at him directly. The
defense asserts that the evidence for the prosecution failed to establish
the attendance of treachery and without the attendance of the said
qualifying circumstance the crime committed is homicide, not murder.
The appellant also points out that the trial court made the factual finding
that the shooting happened in a matter of seconds and that it was
preceded by a heated argument between the parties. Such being the
case, it is argued that the shooting could not have been attended by
treachery. There was no time for the appellant to consciously and
deliberately employ the mode of attack against Noel Andres, nor against
any one of the actual victims, to insure its execution and at the same time
to eliminate any form of retaliation from the alleged intended victim. And
yet, the trial court, contrary to the evidence on record, held that the
loading of the bullet into the chamber of the gun, the cocking of the
hammer, the release of the safety pin and the pulling of the trigger by
the appellant of his automatic pistol constitute conscious and deliberate
effort to employ the gun as a means of committing the crime and
resultantly, qualified its commission by treachery. Such a finding
presupposes that the appellant loaded the gun to shoot Noel Andres only
that very moment when his son Dino and Noel Andres were arguing. This
conclusion has no basis on record. The appellant testified that his gun
was loaded before he left the house and two witnesses for prosecution
stated in court that a few seconds after Noel Andres and Dino started
shouting at each other, the appellant got out of his car and shot at the
last window on the left side of the complainant’s vehicle. Further, the
appellant assigns as error the procedure adopted by the trial court in
taking judicial notice that the gun used by the appellant is an automatic
pistol and as such, it will not fire unless aimed at the intended target. The
procedure taken by the trial court is contrary to Section 3, Rule 129 of
the Rules of Court.7 The trial court should have given both parties the
opportunity to present evidence, expert evidence, if necessary, to inform
the court on the subject matter. The appellant argues that the factual
finding borne by such erroneous procedure is equally erroneous. The gun
used by the appellant is a semi-automatic and not an automatic pistol
which means that the pistol used has no external safety pin to be
released and that the hammer need not be cocked. The pulling of the
trigger, intentional or not, will fire the gun. The use of a semi-automatic
pistol does not necessarily imply treachery.
Appellant also argues that the testimonies of prosecution witnesses
Castro and Ramos were improperly given credence by the trial court. The
appellant contends that a reading of their testimonies would show that
their narration of the incident is rather absurd and would show that they
did not witness the actual shooting. Defense witnesses, Gonzalez and his
daughter, Trisha, on the other hand, testified that Castro and Ramos
arrived at the scene only after the shooting.
As regards the injuries sustained by Kevin and Kenneth, it is argued that
considering that there was no intent to kill and that they stayed in the
hospital only for six days, the crime committed is physical injuries. It is
argued that the trial court erred in awarding damages. The bunch of
receipts allegedly representing the medical expenses incurred for the
injuries sustained by the victims was erroneously admitted in evidence,
without first requiring the prosecution to establish the authenticity of the
receipts. The appellant also points out that the award for loss of earning
capacity has no basis as the deceased was unemployed at the time of the
incident.
Finally, the appellant assigns as error the trial court’s rejection of the
mitigating circumstances pleaded by the defense which allegedly
attended the commission of the crime, i.e., lack of intent to commit so
grave a wrong, passion and obfuscation, incomplete defense of a relative
and voluntary surrender. The appellant asserts that these mitigating
circumstances were duly proven during the trial and are supported by
the evidence on record. The private complainant Noel Andres testified
that he saw the appellant getting red in anger after they, Andres and the
appellant, had a heated argument immediately prior to the shooting.
These admitted circumstances show that the appellant was not in his
proper state of mind at the time of the shooting. First, he was angered
by Andres’ abusive language and later he got out of his car with a loaded
gun to protect his son from a perceived danger. The appellant clams that
his willingness to help the injured and his voluntary surrender to the
police should likewise be considered as mitigating circumstances in the
imposition of penalties.
The Solicitor-General agrees with the appellant that the crime was not
attended by the qualifying circumstance of treachery and hence the
crime committed by the appellant for the death of Feliber Andres is
homicide, not murder. The appellee takes into consideration that the
shooting was preceded by a heated argument and that the supposed
victim was placed on guard that attack was imminent. It also appears that
the shooting was done impulsively. There is no evidence that the
appellant deliberately employed the means of attack to insure execution
of the crime and at the same time eliminate the risk of retaliation from
the private complainant. The appellee also agrees with the appellant that
the trial court erred in equating the use of an automatic pistol with
treachery. The trial court made the factual finding that the appellant’s
automatic pistol would not fire unless aimed and the trigger is
deliberately pulled and hence treachery attended the shooting. The
appellee submits that if we follow the reasoning of the trial court it would
appear that the appellant intended to shoot at the complainant’s vehicle
only as the shot was fired at the last window on the left side of the FX
away from where Andres was allegedly seated. The fact that the gun was
drawn and fired does not mean that the mode of attack was consciously
and deliberately employed.
However, with respect to the injuries sustained by Kevin and Kenneth,
the appellee disagrees with the contention that the appellant is liable
only for slight physical injuries. The injuries sustained by both children
are head injuries and could have caused their death if not for the
immediate medical attention given them. The number of days spent in
the hospital is not determinative of the severity of the wounds. Their
nature and location should instead be considered. The appellant cannot
escape liability for frustrated homicide for the injuries of the two children
on the ground that he fired a single shot at the vehicle of Noel Andres.
He is liable for all the consequences of his unlawful act even if the crime
committed is different from that intended.
As regards the pleaded mitigating circumstances, appellee asserts that
none can be considered in favor of the appellant. There is evidence on
record that the appellant did not voluntarily surrender to the police and
it appears from the testimonies of witnesses that he entertained the
possibility of flight but his car was stuck in traffic along the exit of the
memorial park. His pretense of incomplete defense of a relative is belied
Page 12 of 59
by his own admission that when he saw that Noel Andres did not have a
gun he lowered his hand holding the gun. There was allegedly no threat
on the life of his son at the time of the shooting, no uncontrollable fear
nor irresistible force that would mitigate the commission of the offense.
The Solicitor-General also seeks to uphold the pecuniary awards granted
by the trial court. The appellee alleges that it is not denied by the
appellant that Feliber Andres was a 38 year old registered nurse at the
time of the shooting. Although she was then unemployed on account of
her pregnancy, she still had earning capacity and the trial court properly
applied the salary of a government nurse under the salary
standardization scheme in the computation of damages for the loss of
earning capacity. The receipts presented in evidence by the prosecution
to establish hospitalization and other medical expenses incurred by the
private complainants by reason of the injuries suffered by the victims
were duly authenticated by the prosecution witnesses and there is no
dispute that they are exact copies of the original receipts presented in
court. The objections raised by the appellant in this regard were duly met
by the evidence presented by the private complainants.
In sum, the appellee asserts that considering that the appellant fired a
single shot and in the process committed four offenses the appellant
should be held liable for the complex crime of homicide for the death of
Feliber Andres, double frustrated homicide against Kevin and Kenneth
and attempted homicide against Noel Andres. Under the rules on
complex crimes the penalty for the gravest offense, i.e., reclusion
temporal for homicide, should be imposed in its maximum period.
The appeal has merit.
Treachery under par.16 of Article 14 of the Revised Penal Code is defined
as the deliberate employment of means, methods or forms in the
execution of a crime against persons which tend directly and specially to
insure its execution, without risk to the offender arising from the defense
which the intended victim might raise. For treachery to be appreciated
two elements must concur: 1) the employment of means of execution
that would insure the safety of the accused from retaliatory acts of the
intended victim and leaving the latter without an opportunity to defend
himself and 2) the means employed were deliberately or consciously
adopted by the offender.8 The suddenness of the attack, the infliction of
the wound from behind the victim, the vulnerable position of the victim
at the time the attack was made or the fact that the victim was unarmed
do not by themselves render the attack as treacherous.9This is of
particular significance in a case of an instantaneous attack made by the
accused whereby he gained an advantageous position over the victim
when the latter accidentally fell and was rendered defenseless.10 The
means employed for the commission of the crime or the mode of attack
must be shown to have been consciously or deliberately adopted by the
accused to insure the consummation of the crime and at the same time
eliminate or reduce the risk of retaliation from the intended
victim.11 Accordingly, it has been consistently held by this court that
chance encounters, impulse killing or crimes committed at the spur of
the moment or that were preceded by heated altercations are generally
not attended by treachery for lack of opportunity of the accused to
deliberately employ a treacherous mode of attack.12 Thus, the sudden
attack made by the accused due to his infuriation by reason of the
victim’s provocation was held to be without treachery. Sudden attacks
made by the accused preceded by curses and insults by the victim or acts
taunting the accused to retaliate or the rebellious or aggressive behavior
of the victim were held to be without treachery as the victim was
sufficiently forewarned of reprisal.13 For the rules on treachery to apply
the sudden attack must have been preconceived by the accused,
unexpected by the victim and without provocation on the part of the
latter.14
This Court has also had occasion to state that whether or not the attack
succeeds against its intended victim or injures another or whether the
crime committed is graver than that intended is immaterial, as long as it
is shown that the attack is attended by treachery, the said qualifying
circumstance may still be considered by the court.15 Thus, the
determining factor on whether or not the commission of a crime is
attended by treachery is not the resulting crime committed but the mode
of attack employed in its execution.16
Treachery is never presumed. It is required that the manner of attack
must be shown to have been attended by treachery as conclusively as
the crime itself.17
We affirm the recommendation of the Solicitor-General that the
shooting was not attended by treachery and accordingly the crime
committed for the death of Feliber Andres is homicide and not murder.
The encounter between Noel Andres and the appellant was a chance
encounter. They were total strangers before their vehicles almost
collided at an intersection inside the memorial park. Unfortunately,
heated exchange of remarks that followed the near collision was fanned
by a short temper, which in the case of the appellant, was augmented by
the improvident use of a firearm.
From a reading of the transcript of the testimonies of the witnesses, it
would appear that Noel Andres, who had his pregnant wife and child with
him, among others, on board the Tamaraw FX provoked the altercation.
After the near collision of his vehicle with that of the appellant, he tailed
behind the latter’s car towards the exit until he had the chance to cut
him off to scold him for his failure to observe traffic rules.18 Andres stated
in court that he calmly told the appellant to be careful with his driving
and denied that he was angry when he alighted from his vehicle to
confront the appellant.19 His statement is belied by the witnesses, two
prosecution witnesses included, who uniformly testified that Andres
quarreled with or shouted and cursed at the appellant for the latter’s
recklessness at the intersection.20 The appellant narrated in court that
Andres repeatedly shouted at him, "Putang ina mo, ang tanda-tanda mo
na gago ka pa".21 Andres’ hostile behavior towards the appellant is
evident from his statement in court that he noticed the appellant turning
red in anger.22 It is highly improbable for Gonzalez to have turned red in
anger had Andres been polite, as he claims he was, in scolding Gonzalez.
Andres could have simply communicated to the appellant his disgust for
the latter’s bad driving when he overtook the appellant’s car near the
scene of the shooting but instead he chose to block the appellant’s path,
insult and virtually provoke the appellant to retaliate.
Andres stated in court that when he noticed Gonzalez’ infuriation he
immediately walked towards his vehicle, because according to him the
altercation was over. On his way to his FX he met another man, whom he
later found out to be the appellant’s son, Dino. It appears that the
altercation was far from over because again Andres had a shouting match
this time with Dino.23 In a matter of seconds, the appellant alighted from
his car and fired a single shot at the last window on the left side of Andres’
vehicle at an angle away from Noel Andres. The single bullet fired hit
Feliber Andres on the forehead near the temporal region above the left
eye and the two children with metallic fragments of the bullet on their
faces, one at the cheek and the other below his left eye.
The prosecution did not present evidence as to the exact seating
arrangement of the victims inside the vehicle; suffice it to say, that an
examination of the pictures of the vehicle24 one of which shows a mass
of blood stains on the left side (towards the driver’s seat) of the white
seat cover below the head rest25, would show that the deceased Feliber
Page 13 of 59
must have been seated at the front passenger’s seat and the children at
the middle row behind the driver’s seat.26 Another picture shows a bullet
hole on the last window on the left side of the vehicle 27 and another
shows that the front windshield appears undamaged.28 A ballistics expert
appeared in court for the prosecution and testified that the bullet fired
at the FX came from the appellant’s gun, which fact was admitted by the
defense. The prosecution did not inquire from the ballistics expert
regarding the trajectory of the bullet or the approximate distance of the
appellant from the FX when he fired his gun to establish whether or not
the appellant aimed for Noel or Feliber or simply fired indiscriminately at
the latter’s vehicle.29
At first blush it would seem that the shooting of Feliber Andres was
attended by treachery as she was inside the FX witnessing her husband’s
altercation, first, with the appellant then with the appellant’s son, totally
defenseless from the shot that came suddenly from her left side. Public
outrage over the death of Feliber was heightened by the fact that she
was then pregnant with her second child and her death left a new born
baby girl and a two year old boy motherless.
However, a meticulous review of the evidence prevents a conclusive
finding of treachery and any doubt must be resolved, like the fact of the
commission of an offense, in favor of the accused. The pictures indicate
that Gonzalez fired at the FX at an angle away from Noel Andres and that
Gonzalez was not aiming at anybody in particular. It is not disputed that
the appellant’s car was directly behind the complainant’s FX and that
Gonzalez who was then seated at the driver’s seat alighted from his car,
took a few steps then fired at the left side of the FX. Whether Noel Andres
was seated at the driver’s seat inside his vehicle when Gonzalez fired at
the FX, as the prosecution asserts, or was standing by the door of the
driver’s seat outside his vehicle, as the defense submits, it is clear that
the shot was fired away from Noel Andres. The bullet hit Feliber near her
temple above the left eye indicating that she was facing left towards her
husband when the shot was fired.30 The direct hit on Feliber’s head
shows that the angle of the shot was indeed away from Noel Andres.
Even the eyewitness for the prosecution testified that had the appellant
intended to kill Noel Andres he could have shot directly at him,
considering that Noel Andres was just a few steps away from him31 and
that Noel Andres was visible from the outside because his window was
partially open.32 The pictures show that the bullet hole was on the third
window on the left side of the Tamaraw FX33 belying any attempt to
shoot Noel Andres. Two prosecution witnesses Ramos and Castro
unequivocally declared that "nothing or no one" prevented Gonzalez
from shooting directly at Noel Andres and that Gonzalez could have
simply done so if he wanted to. But after alighting from his car, Gonzalez
took a few steps and shot at the left side window of the FX.34
The fact that the appellant fired his gun from behind the victim does not
by itself amount to treachery. There is no evidence on record that the
appellant deliberately positioned himself behind the victim to gain
advantage over him when he fired the shot. On the contrary, the
evidence before us reveals that the position of the appellant’s car was
not of his own doing but it became so when Noel Andres overtook his car
and cut off his path.
We note further, that the appellant did not act belligerently towards Noel
Andres even after the latter cut off the appellant’s path. Andres stated in
court that the appellant did not alight from his car nor opened his
window until he, Andres, tapped on it.35 For his part Gonzalez
categorically stated in court that he did not point his gun nor threatened
Andres during their short spat.36 Gonzalez, although he had his gun in his
car, did not react to Andres’ cursing until the latter was having an
altercation with the appellant’s son, Dino. Gonzalez claimed that he
perceived that his son was in imminent danger.37 Whether he
overreacted or he shot at Andres’ vehicle out of rage over Andres’
aggressive behavior, one thing appears clear to us, that the shooting was
not done in cold blood. It is undisputed that the windows of the FX are
heavily or darkly tinted so that a person outside would not see if anybody
was inside.38 The pictures of the FX39 on record confirm the testimonies
of both prosecution and defense witnesses that the other passengers of
the FX were not visible from the outside. Gonzalez admitted in court that
Noel Andres mentioned that he has passengers with him while he was
shouting and cursing at Gonzalez but there is no indication that Gonzalez
had any opportunity to see the passengers when he fired the shot. The
totality of the evidence on record fails to support a conclusion that
Gonzalez deliberately employed the mode of attack to gain undue
advantage over the intended nor the actual victim. Without any decisive
evidence to the contrary, treachery cannot be considered; thus the crime
committed is homicide.40
The trial court’s finding that the loading of the gun, the cocking of the
hammer and finally the pulling of the trigger constitute a deliberate
effort on the part of appellant to use the gun as a means of a treacherous
attack is patently erroneous. A single and continuous attack cannot be
divided into stages to make it appear that treachery was involved.41 The
entire incident happened in a matter of minutes, as testified to by
witnesses, and as noted by the trial court.42 It was error to our mind for
the trial court to divide the assault in stages to arrive at the conclusion
that the mode of attack was consciously employed by the appellant.
Contrary to the finding of the trial court that the appellant prepared the
gun before getting out of his car, the appellant testified that he loaded
his gun before he left the house and that it was ready to fire when he
alighted his car. There was no time for him to reflect on the mode of
attack since he just picked up his gun and alighted from his car and shot
at the FX a few seconds after Dino and Noel Andres started shouting at
each other.43 We note further that the trial court pointed out that from
the fact that the appellant prepared his gun to shoot, this was an
indication of the deliberate employment of the gun as a means to kill; i.e.
that the use of an automatic pistol shows that the shooting was attended
by treachery.
We do not agree that the weapon used, by itself, is determinative of
treachery, unless it is shown, and it is not herein shown, that the
appellant deliberately used the gun to insure the commission of the
crime and to render the unarmed victim defenseless. As discussed above,
the encounter between the appellant and the Andresses was a chance
encounter and the appellant’s gun was in the glove compartment of his
car even before he left his house. The shooting was clearly a spur of the
moment or impulsive decision made by the appellant preceded by a
heated altercation at the instance of the private complainant.
Jurisprudence teaches us that under the circumstances, treachery is not
obtaining. In the case of People vs. Valles,44 the accused, a security guard,
fired his Armalite and mortally wounded the victim when the latter
approached the accused four times insisting on entering the workplace
wearing improper uniform, then cursed and insulted and challenged the
accused to a fight. We held that the shooting was not attended by
treachery as the shooting was preceded by a heated altercation at the
instance of the victim. It is to be noted that the kind of weapon used
against an unarmed victim was not taken into consideration in
determining the attendance of treachery; it is the mode of attack
employed by the accused under the particular circumstances of a case
that determines its attendance in the commission of a crime. We find
that the prosecution has not discharged its burden to show that the
shooting was attended by treachery and we are convinced that the crime
committed for the death of Feliber Andres is homicide.
As regards the injuries sustained by the two children we find that the
crime committed are two counts of slight physical injuries. The intent to
Page 14 of 59
kill determines whether the crime committed is physical injuries or
homicide and such intent is made manifest by the acts of the accused
which are undoubtedly intended to kill the victim.45 In a case wherein the
accused did not know that a person was hiding behind a table who was
hit by a stray bullet causing superficial injuries requiring treatment for
three days, the crime committed is slight physical injuries.46 In case of
doubt as to the homicidal intent of the accused, he should be convicted
of the lesser offense of physical injuries.47We have earlier pointed out
that the intent to kill is absent in this case. It was also found that one
small metallic fragment was extracted from Kenneth below his left eye
while another fragment was extracted from Kevin "immediately below
the level of his skin before the cheek bone".48 An examination of the
testimonies of the attending physicians, showed that the wounds
sustained by the two children from the metallic fragments are not in
themselves fatal but may cause death if left untreated. One of the
attending physician testified in court that the fragments themselves "will
not cause complication, it is the entry of the fragment" or the open
wound that is susceptible to infection.49 Two small fragments were no
longer extracted from the face of Kevin Valdez, as the doctor deemed it
to be without danger of complication.50 We note that the various sizes of
the metallic fragments were not established, at least to give an indication
of the severity of the wounds sustained. Both children were discharged
after six days of treatment and there is no showing that they required
subsequent treatment or that they were immobilized for a greater
number of days by reason of the injuries sustained. Considering the
nature and location of their injuries and the number of days required for
their treatment, we find that the crime committed for the injuries
sustained by the children are two counts of slight physical injuries under
Art. 266 of the Revised Penal Code which imposes a penalty of arresto
menor or imprisonment for 1 to 30 days for injuries sustained that has
incapacitated the victim for one to nine days or required medical
attendance for the same period. For evident lack of criminal intent to kill
the complainant, Noel Andres, as above stated, the information for
attempted homicide must fail.
The mitigating circumstances of voluntary surrender, passion and
obfuscation, incomplete defense of a relative and lack of intent to
commit so grave a wrong, pleaded by the defense, were not convincingly
proved and none can be considered in the imposition of penalties. The
testimony of prosecution witness contradicts the appellant’s pretense of
voluntary surrender. Witness Ramos testified that the appellant drove
away towards the gate of the memorial park while he was questioning
him after the shooting and had not Noel Andres and onlookers blocked
his path the appellant could have fled the scene of the crime.51
The mitigating circumstance of passion and obfuscation is also not
obtaining. For this mitigating circumstance to be considered, it must be
shown that (1) an unlawful act sufficient to produce passion and
obfuscation was committed by the intended victim; (2) that the crime
was committed within a reasonable length of time from the commission
of the unlawful act that produced the obfuscation in the accused’s mind;
and that (3) "the passion and obfuscation arose from lawful sentiments
and not from a spirit of lawlessness or revenge".52 Noel Andres’ act of
shouting at the appellant’s son, who was then a nurse and of legal age, is
not sufficient to produce passion and obfuscation as it is claimed by the
accused. Besides, the appellant’s son, Dino was shouting back at Noel
Andres. It was not a case wherein the appellant’s son appeared helpless
and oppressed that the appellant lost his reason and shot at the FX of
Noel Andres. The same holds true for the appellant’s claim of
provocation on the part of Noel Andres. Provocation must be sufficient
to excite a person to commit the wrong committed and that the
provocation must be commensurate to the crime committed. The
sufficiency of provocation varies according to the circumstances of the
case.53 The aggressive behavior of Noel Andres towards the appellant
and his son may be demeaning or humiliating but it is not sufficient
provocation to shoot at the complainant’s vehicle.
The plea for the appreciation of the mitigating circumstance of
incomplete defense of a relative is also unmeritorious since the act of
Andres in cursing and shouting at the appellant and his son do not
amount to an unlawful aggression against them, Dino Gonzalez. Finally,
the plea for the appreciation of the mitigating circumstance of lack of
intent to commit so grave a wrong is likewise devoid of merit. This
mitigating circumstance is obtaining when there is a notable disparity
between the means employed by the accused to commit a wrong and
the resulting crime committed. The intention of the accused at the time
of the commission of the crime is manifested from the weapon used, the
mode of attack employed and the injury sustained by the victim.54 The
appellant’s use of a gun, although not deliberately sought nor employed
in the shooting, should have reasonably placed the appellant on guard of
the possible consequences of his act. The use of a gun is sufficient to
produce the resulting crimes committed.
For the death of Feliber Andres, and in the absence of any mitigating
circumstance, the appellant is hereby sentenced to an indeterminate
sentence of 8 years and 1 day of prision mayor, in its medium period, as
minimum to 14 years 8 months and 1 day of reclusion temporal in its
medium period, as maximum. For each count of the slight physical
injuries committed against Kenneth Andres and Kevin Valdez, the
appellant is hereby sentenced to 20 days of arresto menor in its medium
period.
The rules on the imposition of penalties for complex crimes under Art. 48
of the Revised Penal Code are not applicable in this case. Art. 48 applies
if a single act constitutes two or more grave and less grave felonies or
when an offense is a necessary means of committing another; in such a
case, the penalty for the most serious offense shall be imposed in its
maximum period. Art. 9 of the Revised Penal Code in relation to Art. 25
defines grave felonies as those to which the law attaches the capital
punishment or afflictive penalties from reclusion perpetua to prision
mayor; less grave felonies are those to which the law attaches a penalty
which in its maximum period falls under correctional penalties; and light
felonies are those punishable by arresto menor or fine not exceeding two
hundred pesos. Considering that the offenses committed by the act of
the appellant of firing a single shot are one count of homicide, a grave
felony, and two counts of slight physical injuries, a light felony, the rules
on the imposition of penalties for complex crimes, which requires two or
more grave and/or less grave felonies, will not apply.
The pecuniary award granted by the trial court for actual damages was
duly established by the testimonies of the prosecution witnesses as
supported by the original receipts for hospitalization and other medical
expenses presented in evidence by the prosecution. The award for loss
of earning capacity is likewise sustained for the reason that while Feliber
Andres was pregnant and was unemployed at the time of death, it is not
disputed that she was a registered nurse and had earning capacity. Noel
Andres also testified that he and his wife had plans to go back to Saudi
Arabia to work after Feliber had given birth to their second baby. While
there is no evidence as to Feliber’s actual income at the time of her
death, in view of her temporary separation from work because of her
pregnancy, we do not consider it reversible error for the trial court to peg
her earning capacity to that of the salary of a government nurse under
the salary standardization law, as a fair estimate or reasonable
assessment of her earning capacity at the time of her death. It would be
grossly inequitous to deny her spouse and her minor children damages
for the support that they would have received, considering clear
evidence on record that she did have earning capacity at the time of her
death.
Page 15 of 59
The awards for moral damages for the death of Feliber Andres and for
the injuries sustained by the two children, which under the
circumstances are reasonable, are likewise sustained.
WHEREFORE, the decision of the trial court is hereby MODIFIED. The
appellant is hereby found guilty of homicide for the death of Feliber
Andres and is sentenced to an indeterminate sentence of 8 years and 1
day of prision mayor in its medium period, as minimum, to 14 years 8
months and 1 day of reclusion temporal in its medium period, as
maximum. For each count of the slight physical injuries committed
against Kenneth Andres and Kevin Valdez, the appellant is hereby
sentenced to 20 days of arresto menor.
The pecuniary awards granted by the trial court are hereby sustained.
SO ORDERED.
DISSENTING OPINION
PARDO, J.:
We agree that there are indeed many unfortunate tragedies that have
happened because of the improvident use of a firearm to exacerbate a
simple altercation over traffic. One was the Rolito Go case. He shot in
cold blood a college graduate of De La Salle University1 after their cars
nearly collided in a one-way street, snuffing the young life of the victim.
He was convicted of murder. This case is another such senseless killing.
This case occurred on the eve of All Saints Day 1998, along the Garden of
Remembrance within Loyola Memorial Park, Marikina City, Metro
Manila. The trial court convicted the accused of murder and sentenced
him to death. The case is now before us on automatic review. The
majority would convict the accused only of homicide, not of murder. I
regret that I cannot give my concurrence.
In the afternoon of October 31, 1998, at about 2:30, both the family of
complainant Noel Andres and that of accused Inocencio Gonzales were
on their way to the exit of the Loyola Memorial Park, Marikina. The
accused was driving a white Isuzu Esteem van with his grandson and
three housemaids, while the complainant was driving a maroon Toyota
FX with his pregnant wife Feliber Andres, his two year old son, Kenneth,
his nephew Kevin and his sister-in-law, Francar Valdez. At the
intersection near the Garden of Remembrance, the accused Gonzalez
was turning left toward the exit while the complainant Noel Andres was
headed straight along the road to the exit; their two vehicles almost
collided. Noel Andres was able to step timely on the brakes. The accused
continued driving along his way while Noel Andres drove behind
accused’s vehicle for some time and cut him off when he found the
opportunity to do so.2 Noel Andres got out of his vehicle and knocked on
the accused car’s window.3
According to complainant Noel Andres, he calmly told the accused to be
careful with his driving and informed the latter that he was with his
family. To this, accused replied "Accidents are accidents, what’s your
problem." Andres saw the accused turning red in anger, so he decided to
go back to his vehicle when he was blocked by accused’s son who said
"Anong problema mo sa erpat ko." Feeling threatened, Andres
immediately boarded his vehicle, sat at the driver’s seat, closed the door
and partially opened the car window just wide enough to talk back to
accused’s son. Suddenly, one of his passengers said "Binaril kami." He
turned to his wife Feliber Andres and saw her bloodied and unconscious.
He turned around and saw his son Kenneth and nephew Kevin also
wounded. Noel Andres did not hear the shot. He got out of his vehicle to
warn the accused not to flee. He then took the wounded members of his
family to the exit where there was an ambulance standing by and the
three injured were boarded in the ambulance to be brought to the Sta.
Monica Hospital and later transferred to the Quezon City Medical Center.
According to the accused, complainant Andres got out of his vehicle and
repeatedly cursed the accused while he stood beside the accused car’s
window. The accused stayed inside his car and replied. "Pasensiya ka na
hindi kita nakita, nasilaw ako. Aksidente lang." The complainant would
not stop shouting and cursing at him. Dino, the accused’s son, who rode
in another vehicle arrived at the scene, confronted complainant Andres
and the two had an altercation. Complainant Andres remained outside
his vehicle during the altercation with Dino. When complainant Andres
tried to reached for something inside his vehicle, Dino froze where he
stood. This prompted the accused to get his gun from the glove
compartment and feeling that his son was threatened, got out of his car
ready to shoot the complainant. When he saw that complainant Andres
was not armed, he put down his gun. At this point, accused’s daughter
Trisha arrived at the scene, walked past Andres and pushed her father,
the accused, away. She hugged him and in the process he fired the gun
accidentally. The accused did not know that he hit somebody until the
complainant’s sister-in-law, Francar Valdez got out of the vehicle carrying
a bloodied small boy. The accused claimed that he did not try to flee and
even pharisaically told the complainant’s sister-in-law to bring the
wounded to the hospital. Perhaps he meant the cemetery.
On November 4, 1998, the prosecution filed with the Regional Trial
Court, Marikina City, an Information charging the accused with the
complex crime of murder, double frustrated murder and attempted
murder, as follows:
"That on or about the 31st day of October 1998, in the city of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, did then and there willfully, unlawfully and feloniously
with intent to kill, attack, assault and employ personal violence by means
of treachery and abuse of superior strength upon the person of Noel
Andres y Tomas, by then and there shooting him with a Glock cal. 9mm
pistol but instead hitting one Feliber Andres y Ordoño, on the left back
portion of her head, thereby inflicting upon her serious and mortal
wound which directly caused her death, as well as hitting John Kenneth
Andres y Ordoño and Kevin Valdez y Ordoño physical injuries which
ordinarily would have caused their death, thus performing all the acts of
execution which would have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of some
cause or causes, independent of their will, that is, the timely and able
medical assistance rendered to John Kenneth Andres y Ordoño and Kevin
Valdez y Ordoño to their damage and prejudice as well as to the damage
and prejudice of the heirs of Feliber Andres y Ordoño."
On arraignment, the accused pleaded "not guilty" to the charges. Trial
ensued.
Feliber Andres, wife of complainant Noel Andres did not die
instantaneously. She lived to give birth to a baby girl4 by caesarian section
and died the following morning on November 1, 1998. Cause of death
was a gunshot wound on the head.5
Doctors treated Kenneth and Kevin for extraction of metallic fragments
on their faces. They were discharged from the hospital six days later on
November 6, 1998.
After due trial, on June 25, 1999, the trial court rendered a decision
finding that the killing was attended by the qualifying circumstance of
Page 16 of 59
treachery and holding the accused guilty of the complex crime of murder
for the killing of Feliber Andres and for two counts of frustrated murder
for the injuries sustained by Kenneth Andres and Kevin Valdez and
sentenced the accused to death. The dispositive portion of the decision
reads as follows:
"WHEREFORE, foregoing premises considered, the accused Inocencio
Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt
of the complex crime of Murder with Double Frustrated Murder and
Attempted Murder penalized under Art. 248, as amended by Republic
Act No. 7659 in relation to Article 48 of the Revised Penal Code and is
sentenced to suffer the maximum penalty of Death by lethal injection.
"The accused is further ordered to pay the following civil liabilities:
1. To the private complainant Noel Andres:
a) the amount of P50,000.00 as indemnity for the death of Feliber
Andres;
b) the amount of P3,363,663.60 as indemnity for the loss of earning
capacity of the deceased Feliber Andres;
c) the amount of P98,384.19 as funeral expenses;
d) the amount of P271,800.56 for the hospitalization expenses incurred
for the injuries sustained by the deceased Feliber Andres and the amount
of P23,622.58 representing the expenses for the untimely delivery of the
child Ma. Clarisse Andres;
e) the amount of P51,566.00 representing the hospitalization expenses
for the injuries sustained by the victim John Kenneth Andres;
f) the amount of P150,000.00 as moral damages suffered for the
untimely death of his wife Feliber Andres and for the injuries caused to
his son John Kenneth Andres;
g) the amount of P50,000.00 as and by way of attorney’s fees and a fee
of P2,000.00 per appearance; and
h) the costs of the suit.
2. To the private complainant Nicasio Valdez:
a) the amount of P73,824.75 as actual damages for the injuries sustained
by the victim Kevin Valdez; and
b) the amount of P75,000.00 as and by way of moral damages.
"SO ORDERED."
In this review, the accused claimed that the shooting was purely
accidental. This is another of his false pretensions. He declared that he
had no intention to shoot Noel Andres much less his wife nor the
children. He lost his balance when his daughter Trisha pushed him
backward to stop him from joining the confrontation between Dino and
Noel Andres. He tried to free his right hand holding the gun and it
accidentally fired hitting the rear window of the left side of the Tamaraw
FX. He claimed that he did not see the passengers inside the vehicle at
the time of the shooting. The accused asserted that the prosecution
failed to establish the attendance of treachery and without said
qualifying circumstance, the crime committed was homicide, not
murder. We find such pretenses to be utterly false and bigoted. The
evidence plainly shows that he directly aimed his pre-loaded pistol with
multi-missile bullets, released its safety trigger and deliberately pulled
the trigger aiming the gun at complainant Andres. What a poor shot he
was. The bullet hit the innocent pregnant wife of complainant. She did
not die instantly, although she could have. Divine intervention enabled
her to give light to a baby girl born the next day.
The trial court held that the accused’s act of loading the bullet into the
chamber of the gun and the cocking of the trigger of his automatic pistol
constitute conscious and deliberate effort to employ the gun as a means
of committing the crime and resultantly, treachery qualified its
commission. The accused testified that his gun was loaded before he left
the house and he got out of his car and shot at the rear window on the
left side of the complainant’s vehicle. This testimony could not be true,
unless the accused was an instinctive killer who envisioned that he would
use his gun to kill someone as he left his house to go to the cemetery.
The accused also argued that the gun he used was a semi-automatic, not
an automatic pistol which meant that the pistol used had no external
safety pin to be released and that the hammer need not be cocked. The
pulling of the trigger, intentional or not, would fire the gun. This is
another prevarication. Even a semi automatic pistol has to be cocked to
chamber load the same with a bullet and activate the trigger-hammer. In
the Glock semi-automatic 9mm pistol as the one accused used, the
trigger has a built-in safety lever and must be cocked and the trigger
purposely pulled to fire the gun.
Accused argued that the trial court improperly gave credence to the
testimonies of prosecution witnesses Castro and Ramos. Their narration
of the incident was rather absurd and would show that they did not
witness the actual shooting. Defense witnesses, on the other hand,
testified that Castro and Ramos arrived at the scene only after the
shooting.
As regards the injuries sustained by Kevin and Kenneth, the accused
argued that there was no intent to kill and that they stayed in the hospital
only for six days, the crimes committed were two counts of slight physical
injuries. The trial court erred in awarding damages and in admitting in
evidence the bunch of receipts representing the medical expenses
incurred for the injuries sustained by the victims, without first requiring
the prosecution to establish the authenticity of the receipts. The accused
also pointed out that the award for loss of earning capacity had no basis
as the deceased was unemployed at the time of the incident.
Finally, the accused submitted that the trial court erred in rejecting the
mitigating circumstances pleaded by the defense which attended the
commission of the crime, i.e., lack of intent to commit so grave a wrong,
passion and obfuscation, incomplete defense of a relative and voluntary
surrender. The accused asserted that the mitigation circumstances were
duly proven and supported by the evidence. The complainant Noel
Andres testified that he saw the accused getting red in anger after they
had a heated argument immediately prior to the shooting. These
circumstances showed that the accused was not in his proper state of
mind at the time of the shooting. He was angered by Andres’ abusive
language directed at him and he got out of his car with a loaded gun to
protect his son from a perceived danger. The accused claimed that his
willingness to help the injured and his voluntary surrender to the police
should likewise be considered as mitigating circumstances in the
imposition of the penalties.
The Solicitor General agreed with the accused that the crime was not
attended by treachery, and hence, the killing of Feliber Andres was
homicide, not murder. The Solicitor General was of the view that the
Page 17 of 59
shooting was preceded by a heated argument and that the victim was
placed on guard that attack was imminent. There was no evidence that
the accused deliberately employed the means of attack to insure
execution wit out danger of retaliation from the victim. However, with
respect to the injuries sustained by Kevin and Kenneth, the Solicitor
General disagreed with the accused that he was liable only for slight
physical injuries. The injuries sustained by both children were head
injuries and could have caused their death if not for the immediate
medical attention given them. The number of days they spent in the
hospital is not determinative of the severity of the wounds. The accused
is liable for frustrated homicide for the injuries of the two small children
because he fired the shot at Noel Andres that hit instead his pregnant
wife and two small children. He is liable for all the consequences of his
unlawful act even if the crime committed is different from that intended
(aberratio ictus).
As regards the mitigating circumstances, the Solicitor General asserted
that none can be considered in favor of the accused. The accused did not
voluntarily surrender to the police and he even entertained the
possibility of flight but his car was stuck in traffic along the exit of the
memorial park. His claim of incomplete defense of relative was belied by
his own admission that complainant Noel Andres did not have a gun and
there was no unlawful aggression on his part. There was no threat to his
life or the life of his son at the time of the shooting, no uncontrollable
fear nor irresistible force that would mitigate the commission of the
offense.
The Solicitor General also agreed with the pecuniary awards the trial
court granted. He agreed that the late Feliber Andres was a 38-year old
registered nurse at the time of the killing. Although she was then not
employed because she was pregnant, she still had earning capacity and
the trial court properly applied the salary of a government nurse under
the salary standardization scheme in the computation of damages for the
loss of earning capacity. The receipts presented in evidence by the
prosecution to establish hospitalization and other medical expenses
incurred by the complainant by reason of the injuries suffered by the
victims were duly authenticated by the prosecution witnesses and there
is no dispute that they are exact copies of the original receipts presented
in court.
In sum, the Solicitor General asserted that the accused fired a single shot
but because of the multiple missile bullet that he used committed four
offenses. He is liable for the complex crime of homicide for the death of
Feliber Andres, double frustrated homicide against Kevin and Kenneth
and attempted homicide against Noel Andres, and that the penalty for
the gravest offense, that is, homicide, shall be imposed, in its maximum
period, which is seventeen (17) years, four (4) months and one (1) day to
twenty (20) years reclusion temporal.
We find the appeal without merit. We do not agree with the views of the
Solicitor General.
Treachery under Article 14, paragraph 6 of the Revised Penal Code is
defined as the deliberate employment of means, methods or forms in
the execution of a crime against persons which tend directly and specially
to insure its execution without risk to the offender arising from the
defense which the intended victim might raise.6 For treachery to be
appreciated, two elements must concur: (1) the employment of means
of execution that would insure the safety of the accused from retaliatory
acts of the intended victim and leaving the latter without an opportunity
to defend himself or retaliate; and (2) the means of execution employed
were deliberately or consciously adopted by the offender.7 The means
employed for the commission of the crime or the mode of attack must
be shown to have been consciously or deliberately adopted by the
accused to insure the consummation of the crime and at the same time
eliminate or reduce the risk of retaliation by the victim.8 At the time of
the shooting, the complainant was having a tiff with accused’s son. He
knew that the complainant was not armed and there was no imminent
and grave danger to the life of his son. His conscious use of a firearm with
pre-loaded multiple missile bullets against a defenseless man who was
totally unaware of the danger to his life, as the events moved fast and he
did not even hear the shot constitutes treachery. Accused insured the
success of the crime without risk to himself arising from defense or
retaliation. The complainant could not defend himself from such
firepower, much less retaliate. He was without any firearm. Even if the
attack was frontal, it was sudden and the victim was unarmed.
Whether or not the attack succeeds against its intended victim or injures
another, or whether the crime committed is graver than that intended is
immaterial, as long as it is shown that the attack is attended by treachery,
the qualifying circumstance may still be considered.
We can not agree with the accused or the view of the Solicitor General
that the shooting was not attended by treachery. Noel Andres, who had
his pregnant wife and child with him in his Tamaraw FX could have
provoked the situation but was not an aggressor. Initially he touted the
accused for his failure to observe traffic rules.
However, after the altercation, complainant Andres walked toward his
vehicle because the altercation was over. On his way to the Tamaraw FX,
he met another man, who was the accused’s son. It appears that Andres
had another shouting match with accused’s son. Without ado, accused
got his already pre-loaded pistol, alighted from his car and fired a single
shot at complainant Noel Andres. He was a poor shot. The single bullet
hit instead Feliber Andres on the forehead near the temporal region
above the left eye and the splitting metallic shrapnels hit two innocent
children on their faces, one on the cheek and the other below the left
eye. The intent to kill Noel Andres was evident when accused fired away
at him. Accused knew that his son was not physically threatened.
Whether Noel Andres was seated at the driver’s seat inside his vehicle
when accused Gonzales fired, as the prosecution contends or was
standing by the door of the driver’s seat outside his vehicle, as the
defense submits, there is no question that the shot was directed at
complainant Noel Andres. However, as heretofore stated, the accused
was a poor shot. He made up by arming himself with a semi-automatic
pistol loaded with multi-missile bullet that splintered like a shotgun
bullet. His son was not in danger. He knew that complainant could easily
be pacified without resorting to shooting. Whether accused over-reacted
or he shot at Andres out of rage, one thing appears clear to us: the
accused deliberately shot complainant Noel Andres treacherously in cold
blood. However, it was his wife who was fatally hit in the head (aberratio
ictus) and shrapnels hit two young innocent children. By an act of God,
she delivered a baby girl alive but gave her life to Him. The shooting was
a deliberate act of the accused. We are convinced that the shooting was
attended by treachery that qualified the crime of murder aggravated by
the use of a semi-automatic pistol specifically fitted with murderous
missile. The crime committed for the killing of Feliber Andres was
murder, qualified by treachery and aggravated by the use of firearm.
As regards the injuries suffered by the two children, we agree with the
Solicitor General that the crime committed was two counts of frustrated
homicide. The intent to kill was evident with the use of deadly weapon
specially loaded with multi-missile bullets and such intent was clearly
made manifest by the acts of the accused undoubtedly intended to kill
the victims.
An examination of the testimonies of the attending physicians showed
that the wounds sustained by the two children from the metallic
Page 18 of 59
fragments may cause death if left untreated. One of the attending
physicians testified that the fragments themselves will not cause
complications; however, it is the entry of the fragments or the open
wound that is susceptible to infection. Two small fragments were no
longer extracted from the face of Kevin Valdez as the doctors deemed it
to be without danger of complication, but this could still be life
threatening.
None of the mitigating circumstances pleaded by the accused was
convincingly proved to be attendant and none may be considered in the
imposition of the penalties.
IN VIEW WHEREOF, I vote to affirm the decision of the trial Court finding
accused guilty of MURDER, qualified by treachery and aggravated by the
use of firearm for the killing of Feliber Andres and sentencing him
to reclusion perpetua, with the accessory penalties of the law.
For each count of frustrated homicide committed against Kenneth
Andres and Kevin Valdez, the accused must be sentenced to the
indeterminate penalty of ten (10) years and one (1) day of prison mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion
temporal, as maximum; to indemnify the offended parties Kenneth
Andres and Kevin Valdez in the amount of P20,000.00 each.1âwphi1.nêt
G.R. No. 128900 July 14, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO S. ANTONIO, SPO4 JUANITO N. NIETO and SPO1 HONORIO
CARTALLA, JR., accused-appellants.
DECISION
YNARES-SANTIAGO, J.:
This is an appeal from the Decision dated April 30, 1997, rendered by the
Regional Trial Court of Pasig City, Branch 156 in Criminal Case No.
111232-H, for Murder, the dispositive portion of which is quoted
hereunder, to wit:
WHEREFORE, finding accused ALBERTO S. ANTONIO @ "Ambet", GUILTY
beyond reasonable doubt of the crime of Murder, qualified by treachery
as charged in the Information, and there being no mitigating or any
aggravating circumstance, he is hereby sentenced to suffer the penalty
of reclusion perpetua, pursuant to Sec. 6 of Republic Act No. 7659
entitled "An Act to Impose The Death Penalty On Certain Heinous
Crimes" and Art. 63, paragraph 2 of the Revised Penal Code.
In the service of his sentence, accused ALBERTO S. ANTONIO @ "Ambet"
shall be credited in full with the period of his preventive imprisonment.
The guilt of both accused JUANITO NIETO y NEMER and HONORIO C.
CARTALLA, JR., as accessories, having also been established beyond any
reasonable doubt, each of them is hereby sentenced to suffer the
indeterminate penalty of two (2) years, four (4) months and one (1) day
of prision correcional as minimum to eight (8) years and one (1) day of
prision mayor as maximum.
Accused ALBERTO S. ANTONIO @ "Ambet" is likewise hereby ordered to
pay, unto the heirs of Arnulfo B. Tuadles, the following sums:
a. P50,000.00, as indemnity for the death of Arnulfo B. Tuadles;
b. P226,298.36, as actual damages;
c. P7,200,000.00, representing compensable earnings lost by reason of
Arnulfo B. Tuadles’ death;
d. P3,000,000.00 or the stipulated P1,000,000.00 each for the three (3)
children of Arnulfo B. Tuadles, and another P500,000.00 for the widow,
Ma. Odyssa "Suzette" Tecarro-Tuadles, as moral damages;
e. P50,000.00, as exemplary damages;
f. Costs.
In case of insolvency of accused ALBERTO S. ANTONIO @ "Ambet",
accused JUANITO NIETO y NEMER and HONORIO C. CARTALLA, JR., shall
be liable to pay, jointly and severally, one-third (1/3) of the above-
adjudicated sums or the amount of P3,675,432.78 unto the said heirs of
Arnulfo B. Tuadles.
In any event, the foregoing civil liabilities shall all be without subsidiary
imprisonment in case of insolvency.
Being instruments of the crime, let the caliber .9mm Beretta Mode 92F
with Serial Number BER-041965-Z, including its black magazine and five
(5) live bullets, which are presently under the custody of the Court, be
confiscated and forfeited in favor of the Government and turned over to
the Firearms and Explosives Office, Camp Crame, Quezon City.
Let a Commitment Order be issued for the transfer of accused ALBERTO
S. ANTONIO @ "Ambet" from the San Juan Municipal Jail to the Bureau
of Corrections, Muntinlupa City.
SO ORDERED.1
On that fateful morning of November 2, 1996, what should have been an
amiable game of cards between two erstwhile friends turned into a
deadly confrontation resulting in the fatal shooting of one by the hand of
the other. The victim, Arnulfo "Arnie" Tuadles, a former professional
basketball player, succumbed instantaneously to a single gunshot wound
right between the eyes, inflicted with deadly precision by the bullet of a
.9mm caliber Beretta pistol.
Convicted of murder by the trial court as the killer is Alberto "Ambet" S.
Antonio, a one-time chairman of the Games and Amusement Board
(GAB). It was during his stint as such that he and Tuadles became socially
acquainted. They somehow lost touch, but later became reacquainted
when they both started frequenting the International Business Club (IBC),
located along Wilson Street in San Juan, Metro Manila, which houses
amenities such as a dining room, music bar and gameroom. Often, the
two would meet with other members and friends to play cards in the
gameroom at the second floor of the club. Their preferred games were
poker or "pusoy dos", ordinary poker or Russian poker. Their bets always
ran into the tens of thousands of pesos.
The tragic events began to unravel in the final hours of November 1,
1996. Antonio, Tuadles, and a certain Danny Debdani, then president of
the IBC, had agreed to meet at the club for another poker session, their
third night in a row. Antonio arrived at the club first, followed by Tuadles
at around midnight. Debdani, however, failed to appear, so after waiting
Page 19 of 59
for sometime, Antonio and Tuadles decided to play "pusoy dos", a game
for two (2) players only. They continued playing until morning, pausing
only when either of them had to visit the restroom. They stopped playing
at around 9:00 o’clock in the morning of November 2, 1996, to eat
breakfast.
When it came time to tally their scores and collect the winnings from the
loser, an argument arose. It is at this point where the prosecution and
the defense presented two very different scenarios. The prosecution
alleged and sought to prove that in the course of an argument, without
warning or cause, Antonio pulled his gun from behind his back and shot
Tuadles at very close range, thus employing treacherous means to
accomplish the nefarious deed. The pivotal evidence presented by the
prosecution was the testimony of one Jose Jimmy T. Bobis, a security
guard who testified as to how the shooting of Tuadles occurred.
On the other hand, the defense hinged its opposing arguments on the
testimony of accused Antonio himself, who testified that their argument
was caused by Tuadles’ refusal to pay Antonio’s winnings. In the middle
of a heated altercation where they traded expletives, Tuadles suddenly
grabbed Antonio’s gun from atop a sidetable. Fearing for his life, Antonio
claimed that he reached for Tuadles’ hand and they grappled for
possession of the gun. As they wrestled, a single shot roared, Tuadles fell
face down to the floor, and Antonio was left too stunned to recall who
had actually pulled the trigger. In fine, Antonio alleged that the shooting
was accidental, and his only motivation was to defend himself. He also
refuted the testimony of the prosecution’s eyewitness, averring that SG
Bobis could not have seen the actual shooting since he (Bobis) and co-
accused SPO4 Juanito Nieto, who were alerted by Antonio’s yells,
reached the scene when Tuadles had already been shot and was lying on
the floor.
While Tuadles lay bloodied and still, no one remembered to call an
ambulance or check if he was still alive. Instead, and there is no dispute
in these succeeding events, Antonio convinced the two (2) security
guards, prosecution eyewitness SG Bobis included, to accompany him to
his home in Greenmeadows Subdivision, Quezon City, after which they
proceeded to the San Juan Police Station. With them was SPO4 Nieto, a
member of the San Juan Police Force. They remained at Antonio’s
residence for several hours, during which time Antonio made phone calls
and summoned his lawyer. At around 3:00 o’clock in the afternoon,
Antonio, accompanied by SPO4 Nieto, placed himself and his gun in the
custody of San Juan Mayor Jinggoy Estrada and the police authorities.
Later, the two security guards and SPO4 Nieto were driven back to the
club where they waited for the police investigators. Sometime
thereafter, SG Bobis narrated the events and executed his statement at
the police station, a statement which he would repudiate three (3) days
later.
On November 18, 1996, an Information was filed against Antonio for the
crime of murder. Also charged as accessories were SPO4 Nieto and SPO1
Honorio Cartalla, Jr. The Information alleged that:
On or about November 2, 1996, in San Juan, Metro Manila and within the
jurisdiction of this Honorable Court, the accused Antonio, armed with a
gun, did then and there wilfully, unlawfully and feloniously, with intent
to kill and with treachery, attack, assault and use personal violence upon
the person of Arnulfo "Arnie" Tuadles, by then and there suddenly,
unexpectedly, deliberately and without provocation, shooting Arnulfo
"Arnie" Tuadles on his forehead, right between the eyes, thereby
inflicting upon the latter mortal wound which was the direct and
immediate cause of his death;
The accused Nieto, without having participated in said crime of murder,
either as principal or accomplice, did then and there wilfully, unlawfully
and feloniously take part subsequent to its commission, with abuse of his
public functions and position as a public officer, by harboring or assisting
the accused Antonio, by then and there failing to arrest and surrender
immediately the said accused Antonio to the authorities and by giving
false information which tended to deceive the investigating authorities;
and
The accused Cartalla, Jr., without having participated in said crime of
murder either as principal or accomplice, did then and there wilfully,
unlawfully and feloniously take part subsequent to its commission, with
abuse of his public functions and position as a public officer, by
concealing or destroying the effects or instruments of the body of the
crime, in order to prevent its discovery, by then and there removing the
laser sight of the gun used in shooting Tuadles, deliberately omitting to
take steps to preserve the evidence at the scene of the crime, and
purposely failing to call on the crime laboratory service of the proper
agencies for appropriate action.
Contrary to law.2
Upon arraignment, co-accused SPO1 Cartalla, Jr. entered a plea of "Not
Guilty." Accused Antonio and SPO4 Nieto both refused to enter a plea,
and the trial court entered a plea of "not guilty" for both of them.
After trial on the merits, all three accused were found guilty as charged,
imposing on them the appropriate penalties and ordering them to pay to
the heirs of Tuadles various amounts as and for indemnity and damages,
set forth in the dispositive portion quoted above. All three accused filed
separate appeals assailing the trial court’s findings and disposition.
Appellant Antonio assails the trial court’s judgment on the following
assigned errors:
I
THE TRIAL COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY
OF JOSE "JIMMY" BOBIS WHICH CONFLICTS DRASTICALLY NOT ONLY
WITH HIS INITIAL DECLARATIONS BUT ALSO WITH HIS PREVIOUSLY
EXECUTED STATEMENT, AND WHICH TESTIMONY IS TAINTED WITH
SERIOUS INCONSISTENCIES, INCREDIBILITIES, AND OMISSIONS ON
SUBSTANTIAL MATTERS.
II
THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY ATTENDED THE
COMMISSION OF THE OFFENSE CHARGED.
III
THE TRIAL COURT ERRED IN NOT GIVING CREDENCE TO THE VERSION OF
APPELLANT ALBERTO "AMBET" ANTONIO.
IV
THE TRIAL COURT ERRED IN NOT APPRECIATING THE MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER.
V DISREGARDING THE SIXTEEN (16) YEARS OF ACTIVE POLICE SERVICE OF
Page 20 of 59
THE TRIAL COURT ERRED IN NOT FINDING THAT SUFFICIENT
PROVOCATION ON THE PART OF THE VICTIM ARNULFO "ARNIE" TUADLES
IMMEDIATELY PRECEDED THE COMMISION OF THE IMPUTED ACT, AND
IN NOT APPRECIATING THIS MITIGATING CIRCUMSTANCE.
VI
THE TRIAL COURT ERRED IN AWARDING THE SUM OF P7,200,000.00 AS
COMPENSABLE EARNINGS LOST BY REASON OF ARNIE TUADLES’ DEATH,
DESPITE INADEQUATE EVIDENCE TO SUPPORT SUCH AWARD.
VII
THE TRIAL COURT ERRED IN AWARDING PALPABLY EXCESSIVE MORAL
DAMAGES TO THE HEIRS OF ARNIE TUADLES.
VIII
THE TRIAL COURT ERRED IN FINDING APPELLANT ALBERTO "AMBET"
ANTONIO GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
MURDER.3
Appellant SPO4 Nieto likewise questions the trial court’s decision,
arguing that:
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING NIETO AS AN
ACCESSORY
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE CRIME
COMMITTED BY THE PRINCIPAL ACCUSED ANTONIO WAS MURDER4
Appellant Cartalla, Jr. also challenged the said decision on the following
grounds:
I
THE COURT OF ORIGIN HAS COMMITTED A BLATANT ERROR IN
CONVICTING SPO1 HONORIO CARTALLA, JR. AS ACCESSORY TO THE
CRIME CHARGED DESPITE THE FACT THAT THE RECORD IS SO REPLETE
WITH EVIDENCES THAT THERE ARE REASONABLE DOUBTS TO HOLD HIM
AS SUCH.
II
THE COURT A QUO COMMITTED A GRAVE ERROR AND HAS NOT SHOWN
FAIRNESS IN NOT CONSIDERING FULLY THE GOOD FAITH, DILIGENCE AND
HARD WORK EXERTED BY SPO1 HONORIO CARTALLA, JR. WHEN HE
INVESTIGATED THE CASE ON HAND TILL THE TIME HE DELIVERED THE
SPECIMEN OR PIECES OF PHYSICAL EVIDENCE OF THE CRIME TO THE
PNP-CLS, CAMP CRAME, QUEZON CITY.
III
THE LOWER COURT HAS COMMITTED A SERIOUS MISTAKE IN
SPO1 HONORIO CARTALLA, JR. SHOWN WITH DEDICATION AND LOYALTY
THERETO SUSTAINING MORE HIS INNOCENCE OF THE CRIME CHARGED
HEREIN.5
Considering that appellant Antonio is the principal accused, we shall deal
first with the issues raised in his appeal, foremost of which is the
credibility of the prosecution’s sole eyewitness, SG Jose Jimmy Bobis.
Appellant Antonio challenges SG Bobis’ worth and credibility as an
eyewitness on two (2) grounds.
First, SG Bobis, in his first sworn statement before the San Juan
authorities averred that he did not see the actual shooting since he was
still ascending the stairs leading to the second floor where the crime took
place when he heard the gunshot. Days later, in a second statement
taken at the Eastern Police District (EPD) and in his testimony before the
trial court, SG Bobis negated his earlier statement, this time averring that
he had indeed seen appellant Antonio pull his gun from behind, and with
neither warning nor provocation, aim the gun at the head of Tuadles and
shoot the latter pointblank. This complete turnabout in SG Bobis’
testimony, according to appellant Antonio, is a sure sign of the said
witness’ unreliability, incredibility, and unworthiness. He also points out
the contradictions and inconsistencies between SG Bobis’ first and
second statements and court testimony.
Second, appellant Antonio belittles SG Bobis’ reasons for giving the San
Juan Police investigators false information in his first statement, saying
that nobody threatened SG Bobis if he testified against appellant
Antonio. On the other hand, appellant Antonio suggests that it was
Colonel Lucas Managuelod of the EPD who coerced SG Bobis to change
his statement and testimony so that the murder charge against appellant
Antonio would be strengthened.
There is no question that SG Bobis’ second statement and court
testimony, on the one hand, contradicted what he previously narrated in
his first statement, on the other hand. The question therefore is: Which
is more credible and of more value to the courts in ascertaining the guilt
or innocence of the accused?
It is a matter of judicial experience that affidavits or statements taken ex
parte are generally considered incomplete and inaccurate. Thus, by
nature, they are inferior to testimony given in court, and whenever there
is inconsistency between the affidavit and the testimony of a witness in
court, the testimony commands greater weight.6 Moreover,
inconsistencies between the declaration of the affiant in his sworn
statements and those in open court do not necessarily discredit said
witness.7 Thus, the trial court followed precedents in giving more
credence to SG Bobis’ testimony given in open court despite his having
executed an earlier statement which was inconsistent with his testimony.
Besides, when confronted with his first contradictory statement, SG
Bobis explained the reasons why he was moved to give false information
in his first statement. He had testified that moments after he saw
appellant Antonio shoot Tuadles, the appellant warned him: "Ikaw, ‘wag
kang tumistigo, ha."8 Later, he and the other security guard, SG Olac,
were allegedly coerced to go to the appellant’s house in Quezon City. He
also testified that while they were there, appellant Antonio and his
lawyer instructed him (Bobis), should the police investigator ask him who
shot Tuadles, to say that what happened was only an accident.9
At the police station, appellant SPO4 Nieto allegedly told SG Bobis to say
that they were both outside the club when the trouble started, saying:
"kailangan ipalabas natin na nasa labas tayo ng club."10 Bobis stated that
he was confused and afraid, and, therefore, told the police investigator,
appellant Cartalla, Jr., on November 2, 1996, that he did not see
Page 21 of 59
appellant Antonio shoot Tuadles because he was still ascending the stairs
when the gun went off.
Apparently, it was not only fear that ruled his thoughts and actions at
that time, but also remorse and confusion. As found by the trial court:
He admits that he had acted contrary to the ethical standards and code
of conduct of private security guards when he did not make a formal
report to his superior about the shooting incident of November 2, 1996
at the Club but countered that this was because accused Antonio had
taken him to the latter’s house. This being so, neither was he able to put
said accused Antonio under arrest.
Added to this was the fact that even accused Nieto, a policeman in active
service who was with them at the time and who should have done so,
had also failed to arrest accused Antonio, more so with him and SG Olac
who are just ordinary security guards. ("Dahil po ma’am, si SPO4 Nieto,
pulis na po ang kasama namin, hindi niya po nagawa na arestuhin si Mr.
Ambet Antonio mas lalo po kami na ordinary guard lang po.")
True, he had his service .38 caliber in his possession at the time.
Nevertheless, because accused Antonio looked: "parang galit pa sila sa
amin" he can not, as in fact he did not, insist that instead of going to the
house of accused Antonio, he will effect the arrest.11
Nevertheless, Bobis stated that his conscience bothered him, and seeing
Tuadles’ widow crying on television, he gathered enough resolve and
courage to finally tell the truth to the police authorities at the EPD. When
he testified in open court, SG Bobis did not waver in his declaration that
he witnessed appellant Antonio suddenly pull his gun from behind and
shoot Tuadles three (3) feet away.
Rule 132, Section 13 of the Rules of Court provides that:
Before a witness can be impeached by evidence that he has made at
other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he
made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any
question is put to him concerning them. (Underscoring ours).
Thus, this Court has uniformly held that:
Previous statements cannot serve as bases for impeaching the credibility
of a witness unless his attention was first directed to the discrepancies
and he was then given an opportunity to explain them. It is only when no
reasonable explanation is given by a witness in reconciling his conflicting
declarations that he should be deemed impeached.12
We find no reason to discredit the trial court’s finding that the reasons
given by SG Bobis sufficiently explained the conflicting declarations he
made in his two (2) sworn statements and in his court testimony.
Therefore, he cannot be impeached as an eyewitness. This Court also
recognizes that the initial reticence of witnesses to volunteer information
about a criminal case and their aversion to be involved in criminal
investigations due to fear of reprisal is not uncommon, and this fact has
been judicially declared not to adversely affect the credibility of
witnesses.13
Apart from the issue of SG Bobis’ having given an earlier contradictory
statement, his direct testimony and answers under cross-examination
appear clear and convincing. We agree with the trial court when it held:
But it is SG Bobis whom the Court finds credible.
Why he had executed a first, then a second statement, totally in conflict
with each other, SG Bobis had fully explained to the satisfaction of the
Court. His lowly station in life had been taken advantage of by accused
Antonio and Nieto. These two (2) had thought that they had succeeded
in completely prevailing upon SG Bobis. For did not SG Bobis tell their
lies?
Still, the conscience of a good man had won over.
SG Bobis had redeemed himself. He gave spontaneous and
straightforward answers to the gruelling questions propounded on him
and had stuck to his truth.
The Court had painstakingly, taken note of each of the witnesses’
demeanor on the stand. While SG Bobis was steadfast with his words,
accused Antonio and Nieto were evidently recalling from a script. The
other prosecution witnesses, SG Olac and Romeo M. Solano were, like SG
Bobis, untainted in their testimonies.14
Finding nothing that would compel us to conclude otherwise, we respect
the findings of the trial court on the issue of the credibility of SG Bobis as
an eyewitness, especially considering that the trial court was in a better
position to decide the question, having heard the witness himself and
observed his deportment and manner of testifying during the trial.15
In the recent case of People v. Pili, this Court had occasion to rule that:
It is doctrinally settled that the assessments of the credibility of witnesses
and their testimonies is a matter best undertaken by the trial court,
because of its unique opportunity to observe the witnesses firsthand and
to note their demeanor, conduct and attitude under grilling examination.
These are the most significant factors in evaluating the sincerity of
witnesses and in unearthing the truth, especially in the face of conflicting
testimonies. Through its observations during the entire proceedings, the
trial court can be expected to determine, with reasonable discretion,
whose testimony to accept and which witness to believe. Verily, findings
of the trial court on such matters will not be disturbed on appeal unless
some facts or circumstances of weight have been overlooked,
misapprehended or misinterpreted so as to materially affect the
disposition of the case.16
And in People v. Deleverio, this Court ruled that:
It is axiomatic to point out, furthermore, that in an appeal, where the
culpability or innocence of an accused would hinge on the issue of
credibility of witnesses and the veracity of their testimonies, findings of
the trial court are entitled to and given the highest degree of respect.17
Moreover, in People v. Reynaldo, we reiterated the principle that:
The matter of assigning values to declarations on the witness stand is
best and most competently performed by the trial judge who, unlike
appellate magistrates, can weigh the testimony of a witness in the light
of his demeanor, conduct and attitude as he testified, and is thereby
placed in a more competent position to discriminate between the true
and the false.18
Page 22 of 59
There are other reasons why the eyewitness testimony of SG Bobis was
given full faith and credit. SG Bobis, a mere security guard, realized he
was no match to appellants Antonio and SPO4 Nieto. The former, a
wealthy businessman, is known as an intimate friend of people in power.
Appellant Antonio admitted in court that he surrendered himself and his
gun to Mayor Jinggoy Estrada, who was his good friend. Hours later, he
went to see then Vice President Joseph Estrada in Tagaytay City so he
(Antonio) could tell his friend, the Vice President, what happened in his
own words.19
Appellant SPO4 Nieto was a member in active duty of the San Juan Police
Force who was close to appellant Antonio. Considering SG Bobis’ lowly
station in life, as compared to that of the said appellants, it is
understandable that his initial reaction to the shocking events would be
one of intimidation, if not fear. SG Bobis believed then, and no one can
fault him for thinking so, that going against the instructions and dictates
of appellant Antonio and SPO4 Nieto would make life very difficult for
him, knowing they were well-connected to the powers that be. This
perceived threat, whether real or imagined, compelled him to take the
easy way out and just repeat what appellants told him to say.
There is an oft-quoted adage that a person may be able to avoid his
enemies, but he can never run away from himself. SG Bobis may have
momentarily avoided incurring the wrath of the appellants by acceding
to their dictates, but he could not escape the proddings of his conscience.
He realized he had to right a wrong, and this he did with selflessness and
at great risk to himself.
Furthermore, appellants could not impute any ill motive on the part of
SG Bobis except the statement that it was Colonel Lucas Managuelod of
the EPD who told him how to testify. Thus, his positive and categorical
declarations on the witness stand under solemn oath without convincing
evidence to the contrary deserve full faith and credence.20
Appellant Antonio, however, would seek to completely avoid culpability
by claiming that the shooting of Tuadles was caused by mere accident
without his fault or intention of causing it, or that he acted in self-
defense.
Well-entrenched in our jurisprudence is the rule that where an accused
admits having killed the victim but invokes self-defense to escape
criminal liability, he assumes the burden of proof to establish his plea of
self-defense by clear, credible and convincing evidence.21 To successfully
interpose self-defense, appellant Antonio must clearly and convincingly
prove: (1) unlawful aggression on the part of the victim; (2) the
reasonable necessity of the means employed to prevent or repel the
attack; and (3) the person defending himself must not have provoked the
victim into committing the act of aggression.22
Without granting that his testimony is an accurate narration of the events
that took place, we shall discuss the points raised by appellant Antonio
only for the purpose of determining whether the requisites of self-
defense were attendant as claimed. In his testimony appellant Antonio
alleged that Tuadles committed an act of aggression when he (Tuadles)
grabbed the gun which was on top of a sidetable. Appellant Antonio then
concluded that Tuadles had the sole intention of using the gun against
him (Antonio), so he grappled with Tuadles to prevent the latter from
shooting him. His bare testimony, uncorroborated as it is, does not
convince us that Tuadles would, so to speak, beat him to the draw. The
testimony of Bobis shows that Tuadles was calm in answering Appellant
Antonio’s loud invectives, and it would be hard to imagine Tuadles as the
aggressor under such a situation. And even if Tuadles had grabbed the
gun, it could very well have been that Tuadles intended to keep the gun
away from appellant Antonio to prevent the latter from using it against
him considering the state of mind and the foul mood appellant Antonio
was in. This would be a more believable scenario since even appellant
Antonio admitted that he was suffused with anger, his temper short due
to three (3) consecutive sleepless nights.
Appellant Antonio never said that Tuadles aimed or pointed the gun at
him. There is no evidence, apart from appellant Antonio’s
uncorroborated testimony, that Tuadles made an attempt to shoot him.
Hence, there is no convincing proof that there was unlawful aggression
on the part of Tuadles. For unlawful aggression to be appreciated, there
must be an actual, sudden, unexpected attack or imminent danger
thereof, and not merely a threatening or intimidating attitude.23 The
burden of proving unlawful aggression lay on appellant Antonio, but he
has not presented incontrovertible proof that would stand careful
scrutiny before any court. Lacking this requirement, appellant Antonio’s
claim of self-defense cannot be appreciated. He cannot even claim it as
an extenuating circumstance.24
Besides, it cannot be said that appellant Antonio did not provoke Tuadles,
if indeed the latter had grabbed the gun from the table. Antonio himself
admitted that he was shouting and cursing Tuadles while in a furious
rage. Such a threatening stance could be interpreted as a provocation
which could have prompted Tuadles to get the gun so that appellant
Antonio, in his anger, would not be able to use it against Tuadles. If ever
there was provocation, it was certainly coming from appellant Antonio,
not from Tuadles.
In the alternative, appellant Antonio claims that the shooting of Tuadles
was an accident. He further argues that Tuadles was killed while he,
Antonio, was performing a lawful act with due care, and without fault or
intention of causing it. Having ruled that appellant Antonio failed to
prove his claim of self-defense, (i.e., there was no unlawful aggression on
the part of Tuadles and provocation coming from Antonio himself), there
is no basis for us to argue with appellant Antonio that he was performing
a lawful act when he shot Tuadles.25
We note that appellant Antonio’s version of how the shooting took place
leaves much room for conjecture. It is true that there is no fixed dictum
on the reaction of a person under the circumstances of a sudden death
he may have caused. He could react in a variety of ways, some of them
even irrational. However, we respect the trial court’s findings. The trial
court upheld the prosecution’s version thus sustaining the theory that if
Antonio indeed shot Tuadles by accident, the natural reaction expected
of him would be to immediately see to it that Tuadles be brought to a
hospital or get medical attention at the quickest time possible. Instead,
appellant Antonio left Tuadles, who was supposed to be his good friend,
lying dead on the floor for several hours. If indeed he and Tuadles both
had their hands on the gun and there was no telling who actually pulled
the trigger, we agree that appellant Antonio should have seen to it that
no one else would touch the gun barehanded to preserve the fingerprints
on it. Instead, he gave the gun to SPO4 Nieto who had no concern for
preserving the fingerprints on the gun. Not only that, appellant Antonio
also handed the gun to Mayor Jinggoy Estrada. Thus, one tangible piece
of evidence that could have proven his claim of self-defense or accident
was unfortunately lost due to his lack of presence and due care.
Appellant Antonio’s ambivalence in his choice of defenses is clear from
the records. First, he denies that he pulled the trigger because it was
Tuadles who was holding the gun. Then he says that he cannot recall who
fired the gun so it could have very well been either him or Tuadles who
did it. Next, he admits firing the gun, but he did it in self-defense. Only,
he could not indubitably prove that there was unlawful aggression on the
part of Tuadles. Failing there, he again admitted shooting Tuadles, but
Page 23 of 59
that it was an accident. Again, he failed to prove that he was in the
process of performing a lawful act when he shot Tuadles.
When an accused invokes self-defense or claims that it was an accident
to escape criminal liability, he admits having caused the death of the
victim. And when he fails to prove by clear and convincing evidence the
positiveness of that justifying circumstance, having admitted the killing,
conviction of the accused is inescapable.26 Appellant Antonio had to rely
on the strength of his evidence and not on the weakness of the
prosecution’s evidence for, even if the latter were weak, his invoking self-
defense is already an open admission of responsibility for the killing.27 As
it was, appellant Antonio’s testimony is not only uncorroborated by
independent and competent evidence, but also doubtful by itself28 for
being ambivalent and self-serving.29
Having admitted responsibility for the killing of Tuadles, appellant
Antonio claims the mitigating circumstance of voluntary surrender. On
this score, we find merit in his claim considering that all the elements in
order that voluntary surrender may be appreciated were attendant in his
case. First, he had not been actually arrested; Second, he surrendered
himself to a person in authority; and Third, his surrender was voluntary.
It is of no moment that appellant Antonio did not immediately surrender
to the authorities, but did so only after the lapse of about six (6) hours.
In the case of People v. Bautista,30 the voluntary surrender of the accused
to a police authority four (4) days after the commission of the crime was
considered attenuating. There is no dispute that appellant Antonio
voluntarily surrendered to the mayor, a person in authority, before he
was arrested, hence the mitigating circumstance of voluntary surrender
should be considered in appellant Antonio’s favor.31
Appellant Antonio also claims the mitigating circumstance of sufficient
provocation on the part of Tuadles. To avail of this mitigating
circumstance, it must be shown that the provocation originated from the
offended party.32 However, apart from his own testimony, appellant
Antonio has not proven by convincing evidence that he was provoked by
Tuadles. He claimed that Tuadles provoked him when the latter refused
or could not pay his winning. Refusal to pay cannot be a mitigating
provocation for appellant Antonio to kill Tuadles. An unpaid debt cannot,
and never will, be a reason to shoot the debtor dead. Besides, appellant
Antonio had no other proof that he won and that the argument arose
from Tuadles’ refusal to pay. His bare testimony is, at best, self-serving.
Accordingly, appellant Antonio is not entitled to the benefit of the
mitigating circumstance of sufficient provocation.33
There is, however, a significant and consequential aspect of the case
which the trial court overlooked and disregarded.
As earlier stated, we find no sufficient reason to disagree with the trial
court when it relied on the testimony of SG Bobis. However, we have
carefully examined said testimony, the records of this petition, and the
justifications of the trial court upon which it based its decision.
There is no basis for the trial court’s conclusion "that accused Antonio
consciously and deliberately adopted his mode of attack to insure the
accomplishment of his criminal design without risk to himself."34 It ruled
that treachery qualified the killing to murder. The trial court did not
explain the basis for the qualification except for a terse citation that there
was a sudden attack and the victim had no opportunity to defend himself
or to retaliate. As stated by counsel for appellant, out of the 71-page
decision, typed single space, the trial court devoted only a few sentences
to the issue of treachery.
There was no treachery in this case.
It is not only the sudden attack that qualifies a killing into murder. There
must be a conscious and deliberate adoption of the mode of attack for a
specific purpose.
All the evidence shows that the incident was an impulse killing. It was a
spur of the moment crime.
The precedents are many. They are consistent. Among them:
"Mere suddenness of attack is not enough to constitute treachery where
accused made no preparation or employed no means, method and form
of execution tending directly and specially to insure the commission of a
crime and to eliminate or diminish risk from defense which the victim
may take."35
"A sudden and unexpected attack would not constitute alevosia where
the aggressor did not consciously adopt a mode of attack intended to
perpetrate the homicide without risk to himself."36
"A sudden and unexpected attack constitutes the absence of alevosia
where it did not appear that the aggressor had consciously adopted a
mode of attack intended to facilitate the perpetration of the homicide
without risk to himself, as where the appellant followed the victims when
the latter refused appellant's invitation to have some more alcoholic
drinks."37
"The mere suddenness of attack does not, of itself suffice for a finding of
alevosia if the mode adopted by the accused does not positively tend to
prove that they thereby knowingly intended to insure the
accomplishment of their criminal purpose without any risk to themselves
arising from the defense that might be offered."38
"The aggravating circumstance of treachery is not present when decision
to attack was arrived at on the spur of the moment."39
The annotations are similarly consistent. It is not enough that the means,
methods, or form of execution of the offense was without danger to the
offender arising from the defense or retaliation that might be made by
the offended party. It is further required, for treachery to be appreciable,
that such means, method or form was deliberated upon or consciously
adopted by the offender.40 Such deliberate or conscious choice was held
non-existent where the attack was the product of an impulse of the
moment.41
The trial court's ruling that the mere suddenness of an attack makes the
killing a murder because of treachery is not consistent with the decisions
of this Court.42 Conscious deliberation or conscious adoption of the mode
of attack has to be proved beyond reasonable doubt. For it is likewise an
established principle that the quantum of evidence to prove a person's
being guilty of a crime is also required to prove treachery. The same
degree of proof to dispel any reasonable doubt is required before any
conclusion may also be reached respecting the attendance of treachery,
whether as qualifying or aggravating, in a criminal case.43 There is no such
proof in this case.
There is no dispute that prior to the shooting, appellant Antonio and
Tuadles spent several hours having fun playing "pusoy dos." The situation
turned ugly, however, when Tuadles could not pay to appellant Antonio
his alleged winnings. An argument arose, with appellant Antonio and
Tuadles standing face to face three (3) feet away from each other, a fact
attested to by the defense and even by the prosecution eyewitness
himself.
Page 24 of 59
Accordingly to SG Bobis, Tuadles and Antonio were arguing. Antonio even
called out: "Sarge! Sarge! Sarge!" Just before the shooting, Bobis heard
Antonio saying: "Putang ina ka kasi." The argument precluded the
presence of treachery. If Antonio had consciously adopted means and
methods to kill Tuadles, there was no reason to call for a Sergeant or any
eyewitness for that matter.
To the point is our ruling in the case of People v. Alacar,44 where we held
that there was no treachery where the attempt to kill resulted from a
verbal altercation. More recently, in People v. Salvador, we pronounced
that:
"There would be no treachery when the victim was placed on guard, such
as when a heated argument preceded the attack, or when the victim was
standing face to face with his assailants and the initial assault could not
have been unforseen."45 (Underscoring Ours)
Even if it could be said that the attack was sudden, there would still be
no treachery.1âwphi1 In People v. Chua,46 we reiterated our consistent
view that:
"While the killing itself appears to have occurred on sudden impulse, it
was preceded by acts of appellant showing hostility and a heated temper
that indicated an imminent attack and should have put the deceased on
guard."
Thus, treachery could not be appreciated where the victim was
forewarned and could have anticipated the aggression of the accused.
Since the sudden shooting of Tuadles was preceded by a heated verbal
altercation between Tuadles and appellant Antonio, as admitted by both
prosecution and defense, then it cannot be concluded that the shooting
was committed with treachery.
It is also clear that appellant Antonio did not set out or plan to kill Tuadles
in the first place. His criminal act was an offshoot of their argument which
neither of them had foreseen. Hence, there was no treachery because
treachery requires that the mode of attack must have been thought of
by the offender and must have sprung from an unforeseen occurrence.47
In People v. Nitcha,48 we held that:
"To establish treachery, the evidence must show that the accused made
some preparation to kill the victim in such a manner as to ensure the
execution of the crime or to make it impossible or hard for the person
attacked to defend himself. A killing done at the spur of the moment is
not treacherous." (Underscoring ours)
It was Antonio's sudden anger and heated passion which drove him to
pull his gun and shoot Tuadles. Said passion, however, cannot co-exist
with treachery. In passion, the offender loses his reason and control. In
treachery, on the other hand, the means employed is adopted
consciously and deliberately. One who, in the heat of passion, loses his
reason and self-control, cannot consciously employ a particular means,
method or form of attack in the execution of the crime.49 Thus, the killing
of Tuadles by appellant Antonio was not attended by treachery.
That the treachery, which was alleged in the information and favorably
considered by the trial court to elevate the killing to murder, was not
proven by convincing evidence50 is advocated by the Solicitor General in
the Appellee's Brief. He agreed with Appellant Antonio's contention on
the matter:
On the basis of the evidence at hand, appellee is constrained to agree
with this particular submission of Antonio. Antonio and Tuadles engaged
in "pusoy dos". In the beginning, they were heard laughing and kidding
each other (nagtatawanan at nagkakantiyawan). Later, the banter turned
into verbal altercation.
Under the circumstances, Tuadles became aware of the incipient
violence. Hence, Tuadles could have braced himself with the aggression
of Antonio. There is no treachery when the killing results from a verbal
altercation or spat between the victim and the assailant such that the
victim must have been forewarned of the impending danger. In this case,
Bobis testified that he saw Antonio and Tuadles facing each other before
Antonio raised his hand and shot Tuadles on the forehead. The proximate
distance of three feet between Tuadles and Antonio immediately before
the fatal shooting allowed and gave Tuadles opportunity to defend
himself.51
Consequently, Antonio can only be convicted of the lesser crime of
homicide under Article 249 of the Revised Penal code.
Having been found guilty of the crime of homicide, the penalty that
should be imposed on appellant Antonio should be reduced to reclusion
temporal under Article 249 of the Revised Penal Code. There being one
(1) mitigating circumstance of voluntary surrender, the penalty to be
imposed shall be the minimum period of reclusion temporal, that is, from
twelve (12) years and one (1) day to fourteen (14) years and eight (8)
months. Applying the Indeterminate Sentence Law, the minimum of the
penalty to be imposed shall be the penalty next lower which is prision
mayor in any of its periods.52 Therefore, appellant Alberto Antonio is
hereby sentenced to an indeterminate penalty of ten (10) years and one
(1) day of prision mayor, as minimum, to fourteen (14) years and eight
(8) months of reclusion temporal, as maximum.
Appellant Antonio challenges the award of compensatory and moral
damages to the heirs of Tuadles, arguing that said award was
unsupported by adequate evidence. In arriving at the amount of
P7,200,000.00 as compensatory damages, the trial court relied
completely on the testimony of the victim's widow, Suzette Tuadles, who
stated that at the time of his death, Tuadles was earning P50,000.00 a
month from his construction business. Applying the formula laid down by
this Court in the cases of Villa Rey Transit v. CA,53 and People v.
Quilaton,54 the trial court arrived at the amount of P7,200,000.00 as
compensatory damages for loss of earning capacity. Appellant Antonio
argues that the trial court cannot just rely on the sole testimony of
Suzette Tuadles, otherwise, it would be basing its computation on mere
speculation, conjecture, or guess work.
In People v. Silvestre55 and People v. Verde,56 we held that the absence
of documentary evidence to support the prosecution's claim for damages
for loss of earning capacity of the deceased does not preclude recovery
of said damages. There, we awarded damages for loss of earning capacity
computed on the basis of the testimonies of the victim's wives. This was
reiterated in People v. Dizon,57 where we held that:
"As a rule, documentary evidence should be presented to substantiate
the claim for damages for loss of earning capacity. In People vs. Verde (G.
R. No. 119077, February 10, 1999), the non-presentation of
documentary evidence to support the claim for damages for loss of
earning capacity did not prevent this Court from awarding said damages.
The testimony of the victim's wife as to the earning capacity of her
murdered husband, who was then 48 years old and was earning P200.00
a day as a tricycle driver, sufficed to establish the basis for such an award.
x x x As in People vs. Verde, the Court is inclined to grant the claim for
Page 25 of 59
damages for loss of earning capacity despite the absence of documentary
evidence." (Underscoring ours)
In the case at bar, however, the award for compensatory damages should
be calculated as follows:
Net earning = life expectancy x gross annual income
capacity (x) - living expenses
(50% of gross annual
income)
2(80-40)
[P600,000.00 -
x = x
300,000.00]
3
26.67 x
=
P300,000.00
= P8,001,000.00
Considering that moral damages may be awarded without proof of
pecuniary loss, the Court shall take into account the circumstances
obtaining in the case and assess damages according to its
discretion.58 We agree with appellant Antonio that the trial court's award
of moral damages was excessive. While there is no hard and fast rule in
the determination of what would be a fair amount of moral damages,
each case must be governed by its own peculiar circumstances.59 And
though moral damages are incapable of pecuniary estimation to
compensate the claimants for actual injury, they are not designed to
enrich the complainants at the expense of the accused.60
Applied to this case, we recognize that Tuadles was the sole support of
his family and they will also be deprived of his love and companionship.
No amount of money could ever compensate for their loss. While the
award of moral damages may help ease the emotional and psychological
trauma that they continue to suffer, this Court has not granted so large
an amount as moral damages. Accordingly, we find that the amount of
P3,000,000.00 granted by the trial court in this case is excessive, and the
same is therefore reduced to P500,000.00. Moreover, there being no
aggravating circumstances attendant in this case, the award of
exemplary damages should also be deleted.61
We now come to the errors assigned by appellant SPO4 Juanito M. Nieto.
He argues that the trial court erred in convicting him as an accessory. The
trial court's grounds for finding him guilty are: (1) he failed to arrest
appellant Antonio; and (2) he gave false information tending to deceive
the investigating authorities.62
The Revised Penal Code in Article 19 defines an accessory as one who has
knowledge of the commission of the crime, yet did not take part in its
commission as principal or accomplice, but took part in it subsequent to
its commission by any of three modes: (1) profiting himself or assisting
the offender to profit by the effects of the crime; (2) concealing or
destroying the body of the crime, or the effects or instruments thereof
in order to prevent its discovery; and (3) harboring, concealing, or
assisting in the escape of the principals of the crime, provided the
accessory acts with abuse of his public functions or when the offender is
guilty of treason, parricide, murder, or an attempt to take the life of the
Chief Executive, or is known to be habitually guilty of some other crime.63
Under paragraph 3 of Article 19 of the Revised Penal Code, there are two
(2) classes of accessories, one of which is a public officer who harbors,
conceals or assists in the escape of the principal. Such public officer must
have acted with abuse of his public functions, and the crime committed
by the principal is any crime, provided it is not a light felony. Appellant
SPO4 Nieto is one such public officer, and he abused his public function
when he failed to effect the immediate arrest of accused Antonio and to
conduct a speedy investigation of the crime committed.
The evidence in the case at bar, insofar as appellant Nieto's culpability is
concerned, shows that in the middle of the argument between appellant
Antonio and the deceased, Antonio called Nieto by shouting, "Sarge!
Sarge!" Hearing this, SG Bobis woke Nieto up and the latter went
upstairs. Immediately thereafter, appellant Antonio shot Tuadles, and
then ordered Nieto to get the scoresheet and the cards from the table,
which Nieto did. Antonio, Nieto and Bobis went downstairs. Antonio told
guards Bobis and Ernesto Olac to go with them, and they all boarded
Antonio's Mercedes Benz van, including Nieto. They arrived at Antonio's
residence in Greenmeadows Subdivision at around 11:30 o'clock in the
morning. There, they had coffee while Antonio made some telephone
calls. Soon after, a certain Atty. Abaya arrived and talked to the two
security guards, while Nieto was present. Nieto then told Bobis that in his
statement, he should say that the two of them, i.e., Bobis and Nieto,
were seated outside the entrance of the Club when the incident took
place. At 5:00 o'clock in the afternoon, Nieto, Bobis and Olac returned to
the Club. They waited outside until members of the San Juan police,
together with Mayor Jinggoy Estrada and Vice Mayor Philip Cezar, arrived
at 6:00 o'clock in the evening. After the police investigated the scene,
they proceeded to the police station. There, Nieto reiterated his
instruction to Bobis to say that the two of them were outside the club.
While Bobis gave his statement to the police, Nieto remained in front of
him and dictated to him what he should answer to the questions of the
police investigator.64
The foregoing facts were culled from the testimony of SG Bobis.
Appellant Nieto's actuations immediately after the commission of the
crime demonstrate his liability as an accessory. Being a police officer in
the active service, he had the duty to arrest appellant Antonio after the
latter committed a crime in his presence, and which he himself
witnessed. Unfortunately, he failed to do what was incumbent upon him
to do. Instead, he rode with the offender to the latter's house where they
stayed for more than five (5) hours. In the early case of U. S. v. Yacat, et
al., it was held:65
It is, however, unquestionable that Pedro Ureta, who was the local
president of the town of Cabiao at the time the crime was committed,
has incurred criminal liability. Abusing his public office, he refused to
prosecute the crime of homicide and those guilty thereof, and thus made
it possible for them to escape, as the defendant Pedro Lising did in fact.
This fact is sufficiently demonstrated in the records, and he has been
unable to explain his conduct in refusing to make an investigation of this
serious occurrence, of which complaint was made to him, and
consequently he should suffer a penalty two degrees inferior to that
designated by paragraph 2 of article 405 of the Code, by virtue of article
68 thereof.
Appellant Nieto knew of the commission of the crime. Right before the
shooting, appellant Antonio called him and he immediately went
upstairs. He saw that appellant shot Tuadles. Despite this knowledge, he
failed to arrest appellant and, instead, left the crime scene together with
the latter. To this extent, he assisted appellant Antonio in his escape.66
Furthermore, as correctly found by the trial court, appellant Nieto
provided false information to deceive the investigating authorities. He
Page 26 of 59
instructed Bobis to answer falsely to the questions of the investigating
officer, in order to make it appear that there were no eyewitnesses to
the incident and thus make it more difficult for the police to solve the
crime.
Accordingly, the court a quo was correct in convicting appellant as an
accessory to the crime, and he should be sentenced to suffer the penalty
prescribed by law. Applying the Indeterminate Sentence Law, we impose
on appellant Nieto the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years of prison correccional, as maximum.
Finally, we come to appellant SPO1 Honorio Cartalla, Jr.'s appeal. After
carefully reviewing the facts and issues raised therein, we find that the
trial court erred in finding said appellant guilty as an accessory.
The trial court's sole reason for convicting appellant SPO1 Cartalla, Jr. was
his failure to produce the laser sight of the gun as evidence during the
trial. However, such omission does not amount to concealing or
destroying the body of the crime or effects or instruments thereof to
prevent its discovery. The laser sight had been surrendered to the police
authorities so there was no more need for discovery. Its loss thereafter
does not make appellant SPO1 Cartalla, Jr. an accessory. At most, as
custodian thereof, he may be made answerable administratively.
In his testimony, he made clear that the loss was not intentional. He
further stated:
Q Finally, Mr. Cartalla, what can you say about the charge against you as
alleged in the information that you tried to conceal or destroy the effects
or body of the crime to prevent its discovery?
A It's not true, sir.
Q Why?
A Because I did not conceal anything, I did not destroy anything on the
body of the crime and as far as I know, I did all my job as investigator and
I worked for it up to the wee hours of the morning up to the next
morning, I still did it and I gathered evidence and I submitted it to the
Crime Laboratory and even when at the time, I have been hearing that I
will not be the one who will investigate, they got it from me without
proper notice, that they will take over the investigation, I still did my job,
and on the fifth, I was asked by Prosecutor Llorente to retrieve the slug
and what I did was even the investigation is not with me, I still did it, I still
went to the IBC and I still worked hard, I even remember…
Atty. Flaminiano
We want to make of record that the witness is now in tears at this
moment.
COURT
Continue.
A The companion of Inspector de Leon and PO2 Rojas even said that this
policeman is very hardworking, even the investigation is not with him
anymore, but still, he's working and I answered him, whatever, whatever
they will charge to me, maybe it's just their job and so, I will also do my
job. Because as far as I know, I will not be implicated because I have not
done anything, I have not done the charges that they filed against me, I
was surprised when I was given a confirmation that I was an accessory
that is why my youngest child even told me "kala ko Papa, Mabait ka?"
and I told him that it's not true. For me, I have not done anything like
that.
Atty. Fernandez
That's all for the witness, your Honor.
COURT
The way I look at your case, you are indicted here as an accessory
because according to one of the witnesses, the gun together with the
laser sight was handled to you and when that gun reached Crame, the
laser sight was no longer there, answer me, what happened?
A The truth, your Honor, is, when the gun was submitted to me by
Inspector Cabrera, the laser sight was there, I immediately made the
transmittal for the laboratory and I described what is there, together with
the laser and after that, I placed it in a brown envelope, I placed it in my
drawer. On the second day, I was really busy on that day because I was
the only one. I was asking for assistance because I would go out, I will
investigate and then I just found out when I was about to submit the laser
to the laboratory, I gave the envelope together with the transmittal and
when it was being received, he checked it and he said "Sgt. Where is the
laser sight?" and I said "it's there, attached." And he said "please look at
it."
COURT
Who told you that?
A The person who received, your Honor.
COURT
But in your transmittal, you wrote there that there was a laser?
A Yes, your Honor. When I saw the envelope, there was no laser, I was
planning to go back right away but I just said, "okay, I will just cross it"
out and I did not erase because I want that I will not hide anything. It has
happened because maybe somebody is interested or I might have left in
my drawer. Because I will not hide it. That's why I did not sno-pake it and
I just crossed it out so it can be read together with my initial and when I
came back, I asked them who touched my things.
COURT
What answer did you get?
A There was no answer. Nobody was answering me, nobody was
talking.67
From the foregoing, it is clear that appellant SPO1 Cartalla, Jr. did not
intentionally conceal or destroy the laser sight, and the prosecution
failed to prove that he did so with intent to derail the prosecution of the
principal accused. On the other hand, while the laser sight was an
accessory device attached to the gun, it was not essential to the
commission, investigation and prosecution of the crime. The gun itself,
which was the instrument of the crime, was surrendered to the
authorities and presented as evidence in court. The failure of appellant
Page 27 of 59
SPO1 Cartalla, Jr. to present the laser sight as part of the evidence did
not in any way affect the outcome of the trial, much less prevent the
discovery of the crime. Furthermore, there is no showing that appellant
SPO1 Cartalla, Jr. profited by the non-presentation of the laser sight.
Thus, under the definition of an accessory under the Revised Penal Code
and jurisprudence, appellant Cartalla, Jr.'s omission does not make him
liable as an accessory to the crime committed by appellant Antonio. Even
the Solicitor General submits that there are no grounds to convict
appellant Cartalla, to wit:
At the time the laser sight was turned over to Cartalla, the crime or
its corpus delicti had been discovered. Hence, the loss of the laser sight
could not have prevented the discovery of the crime. The essential
instrument of the crime, namely, a caliber .9 mm Beretta Model 92F with
serial number BER-041965-7 and black magazine had been preserved
and presented as evidence.
Neither could Cartalla be said to have profited with the non-presentation
of the laser sight as this was not proved by the prosecution. Either way,
concealing or profiting, there is no convicting motive for Cartalla to have
so committed. More so, as Cartalla was the investigating officer on the
case.
It is submitted that the non-production of the laser sight by Cartalla did
not make him an accessory to the crime committed by Antonio, although
he may be administratively liable for the loss of a part of the evidence for
the prosecution in this case.68
WHEREFORE, in view of all the foregoing, the appealed Decision in
Criminal Case No. 111232-H is hereby MODIFIED. Accused-appellant
Alberto "Ambet" Antonio is found GUILTY beyond reasonable doubt of
the crime of HOMICIDE and is correspondingly sentenced to suffer the
indeterminate penalty of ten (10) years and one (1) day of prision mayor,
as minimum to fourteen (14) years and eight (8) months of reclusion
temporal, as maximum. Accused-appellant Juanito Nieto y Nemer is
likewise found GUILTY beyond reasonable doubt as accessory to the
crime of HOMICIDE, and is correspondingly sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum,
to four (4) years of prision correccional, as maximum.
Accused-appellant Antonio is likewise ordered to pay to the heirs of
Arnulfo B. Tuadles the following sums:
(1) P50,000.00 as indemnity for the death of Arnulfo B. Tuadles;
(2) P226,298.36 as actual damages;
(3) P8,001,000.00 as compensatory damages for loss of earning capacity;
(4) P500,000.00 as moral damages; and
(5) Costs.
For failure to prove accused-appellant SPO1 Honorio Cartalla, Jr.'s guilt
beyond reasonable doubt as accessory to the crime, he is ACQUITTED
and absolved of all liability, both criminal or civil.
In case of insolvency of appellant Alberto S. Antonio @ "Ambet",
appellant Juanito Nieto y Nemer shall be liable to pay one-half (1/2) of
the above-adjudicated sums or the amount of P4,388,649.18 unto the
said heirs of Arnulfo B. Tuadles.
In all other respects, the judgment of the trial court is AFFIRMED.
SO ORDERED.
G.R. Nos. 111206-08 October 6, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CLAUDIO TEEHANKEE, JR., accused-appellant.
PUNO, J.:
Three (3) separate Informations were filed against accused Claudio
Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino
and Maureen Hultman. Initially, he was charged with: MURDER for the
killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the
shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When
Hultman died on October 17, 1991, during the course of the trial, the
Information for Frustrated Murder against accused was amended to
MURDER.1
The Information for murder in Criminal Case No. 91-4605 thus reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun,
with intent to kill and evident premeditation and by means of treachery,
did then and there wilfully, unlawfully and feloniously attack, assault and
shoot with and shoot with the said handgun Roland John Chapman who
war hit in the chest, thereby inflicting mortal wounds which directly
caused the death of said Roland John Chapman.
Contrary to law.2
The Amended Information for Murder in Criminal Case No. 91-4606
reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun,
with intent to kill and evident premeditation, and by means of treachery,
did then and there wilfully, unlawfully and feloniously attack, assault and
shoot with the said handgun Maureen Navarro Hultman who was hit in
the head, thereby inflicting moral wounds which directly caused the death
of the said Maureen Hultman.
CONTRARY TO LAW.3
Finally, the Information for Frustrated Murder in Criminal Case No. 91-
4607 reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, while armed with a handgun, with
intent to kill, treachery and evident premeditation did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one Jussi
Page 28 of 59
Olavi Leino on the head, thereby inflicting gunshot wounds, which
ordinarily would have caused the death of said Jussi Olavi Leino, thereby
performing all the acts of execution which would have produced the
crime of murder as a consequence, but nevertheless did not produce it
by reason of cause or causes independent of his will, that is, due to the
timely and able medical assistance rendered to said Jussi Olavi Leino
which prevented his death.
Contrary to law.4
In the two (2) Informations for frustrated murder initially filed against
accused, bail was set at twenty thousand pesos (P20,000.00) each. No
bail was recommended for the murder of Roland John Chapman. A
petition for bail was thus filed by accused. Hearing was set on August 9,
1991, while his arraignment was scheduled on August 14, 1991.
At the hearing of the petition for bail on August 9, 1991, the prosecution
manifested that it would present the surviving victim, Jussi Leino, to
testify on the killing of Chapman and on the circumstances resulting to
the wounding of the witness himself and Hultman. Defense counsel Atty.
Rodolfo Jimenez objected on the ground that the incident pending that
day was hearing of the evidence on the petition for bail relative to the
murder charge for the killing of Chapman only. He opined that Leino's
testimony on the frustrated murder charges with respect to the
wounding of Leino and Hultman would be irrelevant.5
Private prosecutor, Atty. Rogelio Vinluan, countered that time would be
wasted if the testimony of Leino would be limited to the killing of
Chapman considering that the crimes for which accused were charged
involved only one continuing incident. He pleaded that Leino should be
allowed to testify on all three (3) charges to obviate delay and the
inconvenience of recalling him later to prove the two (2) frustrated
murder charges.6
By way of accommodation, the defense suggested that if the prosecution
wanted to present Leino to testify on all three (3) charges, it should wait
until after the arraignment of accused on August 14, 1991. The defense
pointed out that if accused did not file a petition for bail, the prosecution
would still have to wait until after accused had been arraigned before it
could present Leino.7
The private prosecutor agreed to defer the hearing on the petition for
bail until after arraignment of accused on the condition that there shall
be trial on the merits and, at the same time, hearing on the petition for
bail. The defense counsel acceded.8
Upon arraignment, accused pleaded not guilty to the three (3) charges.
The prosecution then started to adduce evidence relative to all three (3)
cases. No objection was made by the defense.9
A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino
invited Roland Chapman, Maureen Hultman and other friends for a party
at his house in Forbes Park, Makati. The party started at about 8:30 p.m.
and ended at past midnight. They then proceeded to Roxy's, a pub where
students of International School hang out. 10 After an hour, they
transferred to Vintage, another pub in Makati, where they stayed until
past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up
a friend of Maureen, then went back to Leino's house to eat. 11
After a while, Maureen requested Leino to take her home at Campanilla
Street, Dasmariñas Village, Makati. Chapman tagged along. 12 When they
entered the village, Maureen asked Leino to stop along Mahogany Street,
about a block away from her house in Campanilla Street. She wanted to
walk the rest of the way for she did not like to create too much noise in
going back to her house. She did not want her parents to know that she
was going home that late. Leino offered to walk with her while Chapman
stayed in the car and listened to the radio. 13
Leino and Maureen started walking on the sidewalk along Mahogany
Street. When they reached the corner of Caballero and Mahogany
Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused
Claudio Teehankee, Jr., came up from behind them and stopped on the
middle of the road. Accused alighted from his car, approached them, and
asked: "Who are you? (Show me your) I.D." Leino thought accused only
wanted to check their identities. He reached into his pocket, took out his
plastic wallet, and handed to accused his Asian Development Bank (ADB)
I.D. 14 Accused did not bother to look at his I.D. as he just grabbed Leino's
wallet and pocketed it. 15
Chapman saw the incident. All of a sudden, he manifested from behind
Leino and inquired what was going on. He stepped down on the sidewalk
and asked accused: "Why are you bothering us?" Accused pushed
Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman
felt his upper body, staggered for a moment, and asked: "Why did you
shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside
Chapman to assist him but accused ordered him to get up and leave
Chapman alone. 16
Accused then turned his ire on Leino. He pointed gun at him and asked:
"Do you want a trouble?" Leino said "no" and took a step backward. The
shooting initially shocked Maureen. When she came to her senses, she
became hysterical and started screaming for help. She repeatedly
shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody
help us?"
All the while, accused was pointing his gun to and from Leino to Maureen,
warning the latter to shut up. Accused ordered Leino to sit down on the
sidewalk. Leino obeyed and made no attempt to move away. Accused
stood 2-3 meters away from him. He knew he could not run far without
being shot by accused.
Maureen continued to be hysterical. She could not stay still. She strayed
to the side of accused's car. Accused tried but failed to grab her. Maureen
circled around accused's car, trying to put some distance between them.
The short chase lasted for a minute or two. Eventually, accused caught
Maureen and repeatedly enjoined her to shut up and sit down beside
Leino. 17
Maureen finally sat beside Leino on the sidewalk. Two (2) meters away
and directly in front of them stood accused. 18 For a moment, accused
turned his back from the two. He faced them again and shot Leino. Leino
was hit on the upper jaw, fell backwards on the sidewalk, but did not lose
consciousness. Leino heard another shot and saw Maureen fall beside
him. He lifted his head to see what was happening and saw accused
return to his car and drive away. 19
Leino struggled to his knees and shouted for help. He noticed at least
three (3) people looking on and standing outside their houses along
Caballero Street. 20 The three were: DOMINGO FLORECE, a private
security guard hired by Stephen Roxas to secure his residence at #1357
Caballero Street, Dasmariñas Village, Makati; 21 VICENTE MANGUBAT, a
stay-in driver of Margarita Canto, residing at #1352 Caballero Street,
corner Mahogany Street, Dasmariñas Village; 22 and AGRIPINO CADENAS,
a private security guard assigned at the house of Rey Dempsey, located
at #1351 Caballero Street, corner Mahogany Street, Dasmariñas
Village. 23
Page 29 of 59
Security guards Florece and Cadenas were then on duty at the house of
their employer, while driver Mangubat was in his quarters, preparing to
return to his own house. These three (3) eyewitnesses heard the first
gunshot while at their respective posts.
Upon hearing the first shot, Florece went out to Caballero Street to see
what was happening, while Mangubat and Cadenas peeped over the
fence of their employer's house and looked out to Caballero Street. Each
saw a man (Chapman) sprawled on the ground, another man (Leino)
sitting on the sidewalk, a third man standing up ad holding a gun and a
woman (Hultman). They saw the gunman shoot Leino and Hultman and
flee aboard his Lancer car. However, because of Florece's distance from
the scene of the crime, 24 he was not able to discern the face of the
gunman. He saw the control numbers of the gunman's car as 566. He
described the gateway car as a box-type Lancer, its color somewhat
white ("medyo maputi"). 25 Cadenas noticed in full the plate number of
the getaway car and gave it as PDW 566. He described the car as silver
metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face.
They had a good look at him. Cadenas was then a mere four (4) meters
away from the gunman's car, 27 while Mangubat was about twenty (20)
meters away from the scene of the crime. 28 The three confirmed that
the corner of Caballero and Mahogany Streets where the shooting took
place was adequately illuminated by a Meralco lamppost at the time of
the incident. 29
After the gunman sped away, Mangubat ran outside his employer's
house and went near the scene of the crime. He noticed security guard
Florece along Caballero Street. A man on a bike passed by and Mangubat
requested him to report the shooting incident to the security officers of
Dasmariñas Village. 30 Meanwhile, Florece returned to his post and
narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas
repaired to the crime scene while Florece noted the incident in his
logbook (Exhibit "B"). He also jotted down the license plate control
number of the gunman's car as 566. 31
The security guards of Dasmariñas Village came after a few minutes. They
rushed Leino and Maureen to the Makati Medical Center for
treatment. 32
The Makati police and agents of the NBI also came. Patrolman JAMES
BALDADO of the Makati police, together with SPO3 ALBERTO
FERNANDEZ, investigated the incident. 33 Their initial investigation
disclosed that the gunman's car was a box-type Mitsubishi Lancer with
plate control number 566. They checked the list of vehicles registered
with the village Homeowners' Association and were able to track down
two (2) Lancer cars bearing plate control number 566. One was
registered in the name of JOSE MONTAÑO of 1823 Santan Street,
Dasmariñas Village, with plate number PKX 566, and another was traced
to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street,
Dasmariñas Village, with plate number PDW 566.
SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the
NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team
to investigate the shooting. Ranin's team immediately proceeded to the
house of Jose Montaño35 where they found ahead of them the Makati
police and operatives of the Constabulary Highway Patrol. Ranin tried to
verify from Mrs. Montaño whether the white Lancer car registered in the
name of Mr. Montaño and bearing plate number 566 was the gunman's
car. Mrs. Montaño denied and declared they had already sold the car to
Saldaña Enterprises. She averred the car was being used by one Ben
Conti, a comptroller in said company, who resides in Cubao, Quezon City.
Mrs. Montaño called up her husband and informed him about the
investigation. She also called up Conti and asked him to bring the car to
the house. 36
Jose Montaño came around noon. Conti followed with white Lancer car.
Ranin brought them to the NBI office for investigation, together with
Lancer car. At the NBI Ranin inquired from Montaño the whereabouts of
his car on July 12 and 13, 1991. Montaño informed him that the car was
at the residence of his employee, Ben Conti, at E. Rodriguez Street,
Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13,
1991, Conti drove the car to their office at Saldaña Enterprises. Conti
confirmed this information. Ranin received the same confirmation from
two (2) NBI agents who made a countercheck of the allegation. Upon
Ranin's request, Montaño left his car at the NBI parking lot pending
identification by possible witnesses. 37
On July 14, 1991, a team of NBI agents conducted an on-the-spot
investigation and neighborhood inquiry of the shooting incident. They
interviewed Domingo Florece and asked him to report to their office the
next day for further investigation.38 They also interviewed Agripino
Cadenas who was reluctant to divulge any information and even denied
having witnessed the incident. Sensing his reluctance, they returned to
Cadenas' post at Dasmariñas Village that night and served him a
subpoena, inviting him to appear at the NBI office for investigation the
next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian
national residing at #1350 Caballero Street, Dasmariñas Village, near the
scene of the crime. Asliami informed the agents that the gunman's car
was not white but light gray. A foreign national, Asliami was afraid and
refused to give a statement about the incident. The agents exerted every
effort to convince Asliami to cooperate, assuring her of their protection.
Ranin even asked a representative of the Egyptian embassy to coax
Asliami to cooperate. They failed. 40
On July 15, 1991, Florece and Cadenas appeared at the NBI office as
summoned. Florece readily executed a sworn statement.41 Cadenas,
however, continued to feign ignorance and bridled his knowledge of the
incident. He was lengthily interviewed. At around 2:00 p.m., the NBI
agents informed SOG Chief Ranin that Cadenas was still withholding
information from them. Ranin talked to Cadenas in his office. Cadenas
confided to Ranin his fear to get involved in the case. He was
apprehensive that the gunman would harass or harm him or his family.
After Ranin assured him of NBI protection, Cadenas relented. 42
The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He
described the gunman's car as a box-type Lancer with plate number PDW
566. He was brought to the NBI parking lot where Montaño's white
Lancer car was parked to identify the gunman's car. Ranin asked Cadenas
if Montaño's was the gunman's car. Cadenas replied that its color was
different. Ranin directed him to look around the cars in the parking lot
and to point the color that most resembled the color of the gunman's
car. He pointed to a light gray car. Ranin told him that the color of the car
he pointed to was not white but light gray. 43
Ranin then asked Cadenas if he could identify the gunman. Cadenas
replied in the affirmative. Ranin led Cadenas to his office and showed him
ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from
the NBI files. One of the pictures belonged to accused Claudio
Teehankee, Jr. Cadenas studied the pictures, picked accused's picture
(Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his
name and the date at the back of said picture. Atty. Alex Tenerife of the
NBI then took down Cadenas' statement. 44
Ranin sent his agents and the witnesses to the Makati Regional Trial
Court to apply for a search warrant. After a searching examination of the
witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit
"RR"), authorizing the NBI to search and seize the silver metallic gray,
1983 Mitsubishi Lancer car owned by accused, bearing plate number
Page 30 of 59
PDW 566. Ranin and his agents drove to accused's house at #1339
Caballero Street, Dasmariñas Village, to implement the warrant. 45
At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of
accused, of their search warrant. Ranin also told Mrs. Teehankee that
they had orders from Director Lim to invite accused to the NBI office for
investigation. Mrs. Teehankee informed them that accused was not in
the house at that time. She excused herself, went to the kitchen and
called up someone on the phone. 46
In the meantime, Ranin and his men slipped to the Teehankee garage and
secured accused's car. After a while, Mrs. Teehankee joined them. Ranin
asked her for the car keys but she told him that the keys were with
accused. Upon Ranin's request, Mrs. Teehankee got in touch with
accused on the phone. Ranin conversed with accused and invited him to
the NBI for investigation. Accused assured Ranin that he would report to
the NBI later that day. The agents then towed the car of accused to the
NBI office. 47
At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the
NBI office and waited for accused. Accused came, escorted by three (3)
Makati policemen, after an hour. He informed them that he just came
from the Makati police station where he was also investigated. He told
Lim that he was given a statement to the Makati police and was brought
to the PC Crime Laboratory for paraffin test. 48
Accused's NBI investigation started. Lim asked accused of the
whereabouts of his Lancer car at the time of the shooting. Accused
claimed that his car was involved in an accident a few weeks back and
was no longer functioning. The car had been parked in his mother's
house at Dasmariñas Village since then. Due to the lateness of the
evening, the group decided to continue the investigation the following
day. 49
The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim
pressed accused on what really happened at Dasmariñas Village. Accused
said he did not see anything. Lim apprised accused that he would be
confronted with some eyewitnesses. Accused sank into silence. 50
Lim directed Ranin to prepare a lineup at his office. Accused was
requested to join the lineup composed of seven (7) men and he acceded.
Cadenas was called from an adjoining room 51 and Ranin asked him to
identify the gunman from the lineup. Forthwith, Cadenas pointed to
accused. 52 Accused merely stared at Cadenas. 53
On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2)
other agents brought accused to Forbes Park for further identification by
the surviving victim, Jussi Leino. Leino has just been discharged from the
hospital the day before. Since Leino's parents were worried about his
safety, they requested the NBI to conduct the identification of the
gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54
House security agents from the U.S. embassy fetched Leino at his house
and escorted him and his father to a vacant house in Forbes Park, along
Narra Avenue. After a couple of minutes, Leino was brought out of the
house and placed in a car with slightly tinted windows. The car was
parked about five (5) meters away from the house. Inside the car with
Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino
was instructed to look at the men who would be coming out of the house
and identify the gunman from the lineup. 55
A group of five to six men (including accused) then came out of the
unoccupied house, into the street, in a line-up. Leino noticed that one of
them was wearing sunglasses. Since Leino could not yet speak at that
time due to the extensive injury on his tongue, he wrote down on a piece
of paper a request for one of the men in the lineup to remove his
sunglasses. Leino handed this written request to his father. The men in
the lineup were herded back inside the house. After a couple of minutes,
they again stepped out and none was wearing sunglasses. From the
lineup, Leino identified accused as the gunman. 56
The agents brought back accused to the NBI. They prepared and referred
the cases of murder and double frustrated murder against accused to the
Department of Justice for appropriate action. At the inquest, Fiscal
Dennis Villa-Ignacio did not recommend bail insofar as the murder charge
was concerned. Hence, accused was detained at the NBI. 57
The shooting incident was also investigated by the Makati Police. Pat.
Baldado went to see security guard Vicente Mangubat at his post, at the
residence of his employer in Dasmariñas Village. Baldado interviewed
Mangubat and invited him to the Makati police station where his
statement (Exhibit "D") was taken. 58
part of their on-going investigation. Eventually, accused's counsels
acquiesced but requested that identification be made without the
presence of the media. Velasco turned them down and explained that if
accused is not identified n the lineup, the media coverage would favor
accused. 65
All that time, accused was at the SOG office. He refused to join the lineup
at Lim's office and remained seated. Ranin was compelled to bring to the
SOG office the men composing the lineup and he asked them to go near
accused. Ranin then told Mangubat to go in the office. Mangubat pointed
to accused as the gunman.
With the identification of accused by Mangubat, the NBI wrote finis to its
investigation. 66
JUSSI LEINO, the surviving victim, suffered the following injuries:
FINDINGS:

= Abrasion, 0.5 cm., temporal area, left.

The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched
Mangubat from his house and brought him to the Makati police station.
At the station, Baldado told him to wait for a man who would be coming = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter,
and see if the person was the gunman. Mangubat was posted at the top located at the upper lip, mouth, along the medial line, directed
of the stairs at the second floor of the station. 59 backwards and downwards, fracturing the maxillary bone and central
and lateral incisors, both sides, to the buccal cavity then lacerating the
tongue with fragments of the bullet lodged in the right palatine, tongue
After a couple of hours, accused, came with Makati police Major Lovete.
and tonsillar region.
He ascended the stairs, passed by Mangubat and proceeded to Major
Lovete's office at the second floor. While accused was going up the stairs,
Pat. Baldado inquired from Mangubat if accused was the gunman. SKULL
Mangubat initially declined to identify accused, saying that he wanted to CHEST FOR RIBS X-RAY #353322
see the man again to be sure. He also confided to Pat. Baldado that he July 13, 1991
was nervous and afraid for accused was accompanied by a police Major.
When accused came out from Major Lovete's office, Pat. Baldado again No demonstrable evidence of fracture. Note of radioopaque foreign
asked Mangubat if accused was the gunman. Mangubat nodded his head body (bullet fragments) along the superior alveolar border on the right.
in response. 60 Accused, together with Major Lovete and Pat. Baldado, No remarkable findings.
boarded a Mercedes Benz and left. Mangubat was brought back to his
post at Dasmariñas Village by other Makati CT SCAN #43992 July 13, 1991
policemen.61

Small hyperdensities presumably bullet and bone fragments in the right

Two (2) days later, Pat. Baldado visited Mangubat at his employer's house palatine, tongue and tonsillar regions with associated soft tissue swelling.
and asked him again if accused was really the gunman. Once more,
Mangubat answered in the affirmative. Pat. Baldado told Mangubat that
he would no longer ask him to sign a statement which he (Baldado) Anterior maxillary bone comminuted fracture.
earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63
Temporal lobe contusions with small hematomata on the right side.
In the afternoon of July 23, 1991, Mangubat was also questioned by the
NBI agents. Director Lim asked Mangubat if he could recognize the Minimal subarachnoid hemorrhage.
gunman. Mangubat said he could. Mangubat was shown twelve (12)
pictures (Exhibits "E" to "E-11) of different men and was asked to identify Intact bone calvarium.
the gun gunman from them. He chose one picture (Exhibit "E-10"), that
of accused, and identified him as the gunman. Mangubat's statement
xxx xxx xxx 67
was taken. He was asked to return to the NBI the next day to make a
personal identification. 64
Dr. Pedro Solis, testified that the bullet entered the left temple of Leino.
After entering Leino's head, it fractured his upper jaw and his front teeth.
When Mangubat returned, a lineup was prepared in Lim's office in the
Some of the bullet fragments pierced his palette and tongue. Brain
presence of the media. At that time, accused's counsels, Attys. Jimenez
scanning revealed contusions on the temporal lobe and hemorrhage on
and Malvar, were at the office of then Asst. Director Epimaco Velasco
the covering of the brain. Physical deformity resulted as a consequence
protesting to the submission of accused to identification. They pointed
of the gunshot wound because of the fractured upper jaw and the loss
out that since the cases against accused had already been filed in court
of the front teeth. Sutures were performed on the upper portion of his
and they have secured a court order for the transfer of accused to the
tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty
Makati municipal jail, any identification of accused should be made in the
in speaking. 68
courtroom. Asst. Director Velasco insisted on the identification as it was

Page 31 of 59
Dr. Solis also testified as to the relative position of Leino and the gunman.
He opined that the muzzle of the gun, like in the case of Maureen, must
have been at a higher level than the victim's head. He concluded that the
gun must have been pointed above Leino's head considering the
acuteness and downward trajectory of the bullet. 69
Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center,
operated on MAUREEN HULTMAN. He testified that when he first saw
Maureen, she was unconscious and her face was bloodied all over.
Maureen had a bullet hole on the left side of the forehead, above the
eyebrow. Brain tissues were oozing out of her nostrils and on the left side
of the forehead where the bullet entered. 70
They brought Maureen to the x-ray room for examination of her skull.
She was also given a CT scan. The examination revealed that she suffered
injuries on the skull and brain. There were several splintered bullets in
her brain and the major portion of the bullet, after it fragmented, was
lodged beneath her right jaw. 71
Maureen was rushed to the operating room for surgery. Dr. Isabela led a
team who operated on her brain to arrest the bleeding inside her head,
remove devitalized brain tissues and retrieve the splintered bullets
embedded in her brain. Due to the extensive swelling of Maureen's brain
and her very unstable condition, he failed to patch the destroyed
undersurface covering of her brain. 72 After the surgery, Maureen's vital
signs continued to function but she remained unconscious. She was
wheeled to the ICU for further observation.
Two (2) weeks later, brain tissues and fluid continue to flow out of
Maureen's nostrils due to the unpatched undersurface covering of her
brain, leaving the swollen portion of her brain exposed. A second surgery
was made on July 30, 1991 to repair Maureen's brain covering. He used
the fascia lata of Maureen's right thigh to replace the destroyed covering
of the brain. Nonetheless, Maureen remained unconscious. The trickle of
brain tissues through her nose was lessened but Maureen developed
infection as a result of the destruction of her brain covering. Maureen
developed brain abscess because of the infection. She underwent a third
operation to remove brain abscess and all possible focus of infection. 73
Testifying on the extensive injuries suffered by Maureen Hultman, Dr.
Solis explained that Maureen was shot at the left side of the forehead.
The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the
forehead, the bullet fragmented into pieces and went from the left to the
right side of the temple, fracturing the frontal bone of the skull. The
bullet eventually settled behind the right jaw of Maureen. 74
The wound inflicted on Maureen was mortal for it hit one of the most
vital parts of the body, the brain. When Maureen was subjected to CT
scan, they discovered hemorrhage in her brain. After the bullet hit her
head, it caused hemorrhagic lesion on the ventricles of the brain and the
second covering of the brain. 75
The bullet also injured Maureen's eye sockets. There was swelling
underneath the forehead brought about by edema in the area. Scanning
also showed that Maureen's right jaw was affected by the fragmented
bullet. The whole interior portion of her nose was also swollen. 76
A team of doctors operated on Maureen's brain. They tried to control the
internal bleeding and remove the splintered bullets, small bone
fragments and dead tissues. The main bullet was recovered behind
Maureen's right jaw. There was also an acute downward trajectory of the
bullet. Hence, it was opined that Maureen was shot while she was
seated. 77
Page 32 of 59
With each passing day, Maureen's condition deteriorated. Even if
Maureen survived, she would have led a vegetating life and she would
have needed assistance in the execution of normal and ordinary
routines. 78 She would have been completely blind on the left eye and
there was possibility she would have also lost her vision on the right eye.
All her senses would have been modified and the same would have
affected her motor functions. There was practically no possibility for
Maureen to return to normal. 79
Maureen did not survive her ordeal. After ninety-seven (97) days of
confinement in the hospital, she ceased to be a breathing soul on
October 17, 1991.
For his exculpation, accused relied on the defense of denial and alibi.
Accused claimed that on said date and time, he was not anywhere near
the scene of the crime. He alleged that he was then in his house at #53
San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13,
1991 and woke up at around 8:00 or 9:00 a.m. that same morning.
Accused avowed his two (2) maids could attest to his presence in his
house that fateful day. 80
Accused averred that he only came to know the three (3) victims in the
Dasmariñas shooting when he read the newspaper reports about it. He
denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente
Mangubat before they identified him as the gunman. 81
Accused admitted ownership of a box-type, silver metallic gray
Mitsubishi Lancer, with plate number PDW 566. He, however, claimed
that said car ceased to be in good running condition after its involvement
in an accident in February 1991. Since May 1991 until the day of the
shooting, his Lancer car had been parked in the garage of his mother's
house in Dasmariñas Village. He has not used this car since then.
Accused, however, conceded that although the car was not in good
running condition, it could still be used. 82
Accused said that on July 16, 1991, he went to the Makati police station
at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac
and Major Lovete who wanted to ask him about the ownership of the
Lancer car parked in his mother's house. He readily gave a statement to
the Makati police denying complicity in the crime. He submitted himself
to a paraffin test. He was accompanied by the Makati police to the Crime
Laboratory in Camp Crame and was tested negative for gunpowder
nitrates. 83 After the test, he asked the Makati policemen to accompany
him to the NBI for he had earlier committed to his mother that he would
present himself to Director Lim. 84
He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He
furnished Lim with the statement he earlier gave to the Makati police.
Thereafter, Lim detained him at the NBI against his will. 85
The following day, July 17, 1991, Lim and his agents brought him to the
Manila Hotel for breakfast. When they returned to the NBI, he was asked
to proceed to Lim's office. On his way, he saw a lineup formed inside
Lim's office. The NBI agents forced him to join the lineup and placed him
in the number seven (7) slot. He observed that the man who was to
identify him was already in the room. As soon as he walked up to the
lineup, Cadenas identified him as the gunman. 86
A second identification was made on the same day at a house in Forbes
Park. The NBI agents brought him to Forbes Park but he never saw Jussi
Leino who allegedly identified him as the gunman in a lineup. 87
A third identification was conducted on July 24, 1991. He was then seated
at the office of Ranin for he refused to join another lineup. Despite his
protest, the NBI agents insisted on the conduct of the identification and
ordered a group of men to line up alongside him. While thus seated, he
was identified by Mangubat as the gunman. He complained that he was
not assisted by counsel at any stage of said investigation. 88
The defense also presented CLAUDIO TEEHANKEE III, son of accused
Claudio Teehankee, Jr. He testified that from May 1989 to February 1991,
he had been using his father's Lancer car bearing plate number PDW 566
in going to school. 89
In February 1991, while driving his father's Lancer car, he accidentally hit
a bicycle driver and two (2) trucks parked at the side of the road. The
accident resulted in the death of the bicycle driver and damage to his
father's car, 90especially on its body. The timing of the engine became a
little off and the car was hard to start. They had the car repaired at
Reliable Shop located in Banawe Street, Quezon city. After a month, he
brought the car to the residence of his grandmother, Pilar Teehankee, at
Dasmariñas Village, Makati. He personally started the car's engine and
drove it to Makati from the shop in Quezon City. He did not bring the car
to their house in Pasig for it was still scheduled for further repairs and
they preferred to have the repair done in a shop in Makati. Teehankee III
claimed that from that time on, he was prohibited by his father from
using the car because of his careless driving. He kept the keys to the car
and since he was busy in school, no further repair on said car had been
made. 91
Accused also imputed the commission of the crimes at bar to Anders
Hultman, adoptive father of deceased victim Maureen Hultman. He
capitalized on a newspaper report that the gunman may have been an
overprotective father. This theory was formed when an eyewitness
allegedly overheard Maureen pleading to the gunman: "Huwag Daddy.
Huwag, Daddy." The defense presented Anders Hultman as a hostile
witness.
ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian
Hultman were married in the Philippines in 1981. Vivian had two (2)
children by her previous marriage, one of whom was Maureen. He legally
adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3)
children of their own. 92
The defense confronted Anders with one of the angles of the crime in the
initial stage of the investigation, i.e., that Maureen was overhead
pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders
explained that Maureen could not have uttered those words for
Maureen never spoke Tagalog. He also said that all his children call him
"Papa," not "Daddy." 93
On July 12, 1991, he and Vivian permitted Maureen to have a night out
but instructed her to be home by 2:00 a.m. Maureen just received her
first salary in her first job and she wanted to celebrate with friends. At
the time of the shooting, he and his wife were sleeping in their house. He
woke up at around 5:15 a.m. of July 13, 1991 when a security guard came
to their house and informed them about the killings. 94
Anders admitted he had been vocal about the VIP treatment accorded to
accused at the Makati municipal jail. On several occasions, he checked
on accused in jail and discovered that accused was not in his cell. The jail
guards even covered up accused's whereabouts. His complaint was
investigated by the Congressional Committee on Crime Prevention,
headed by Congressman Concepcion. 95
Page 33 of 59
The defense also presented two (2) Makati policemen, PAT. JAMES F.
BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the
shooting.
Pat. Baldado testified that in the course of his investigation, he learned
from Mr. Jose Montaño that he sold his white Lancer car, with plate
number PKX 566, to Saldaña Lending Investors in February 1991. This car
was assigned to Ben Conti, Operations Manager of said company and was
in the residence of Conti at the time of the shooting. The other witnesses
he interviewed confirmed that Montaño's white Lancer car was not in
the vicinity of Montaño's residence at the time of the incident. 96
SPO3 Fernandez testified that he interviewed security guard Vicente
Mangubat. Mangubat saw the gunman and the get-away car but could
not give the central letters of the car's license plate. Fernandez went to
one of the houses at the corner of Mahogany and Caballero Streets and
asked the maid therein if he could use the phone. After placing a call, the
maid told him that he saw the gunman and heard one of the victims say:
"Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's
name but the latter refused. The defense did not present this maid in
court nor asked the court to subpoena her to testify. Neither was the
alleged statement of the maid included in the Progress Report (Exhibit
"13") prepared by the Makati police investigators. 97
SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he
and Baldado fetched the latter at Dasmariñas Village for identification of
the gunman at the Makati police station.
At the police station, Fernandez and Baldado posted Mangubat at the
lobby. After a few minutes, accused and company arrived. When accused
passed by them, they instructed Mangubat to look around and see if he
could identify the gunman. Mangubat failed to identify accused.
Mangubat told Fernandez that the gunman was younger and shorter
than accused. 98
SPO3 Fernandez also took the statement of security guard Domingo
Florece (Exhibit "MM"). It was signed by Florece in his presence. In said
statement, Florece described the gunman's car as "medyo puti"
(somewhat white). 99
ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory,
testified on the paraffin test she conducted on July 17, 1991 on both
hands of accused. 100 As per Chemistry Report No. C 274-91, 101 the test
yielded a negative result of gunpowder nitrates on accused's hands. In
said Report, she noted that accused was subjected to paraffin test more
than seventy-two (72) hours after the shooting incident. She explained
that 72 hours is the reasonable period within which nitrate residues may
not be removed by ordinary washing and would remain on the hands of
a person who has fired a gun. 102
ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took
the stand for the defense. He testified that in the course of handling the
cases, he was able to confer with Ponferrada, Cadenas' supervisor at the
Security agency where Cadenas was employed. Ponferrada informed him
that Cadenas confided to him that he was tortured at the NBI and was
compelled to execute a statement. Ponferrada, allegedly, refused to
testify. Atty. Malvar, however, admitted the defense did not compel the
attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the
torture story.
Atty. Malvar also admitted that he and Atty. Jimenez were aware of the
irregularities committed in the off-court identification of their client.
When asked what he did to remedy this perceived irregularity, Malvar
said he objected to the conduct of the lineup. When further pressed
whether he filed a petition for review raising this issue with the
Department of Justice upon the filing of the cases therewith, he said he
did not. He offered the excuse that he deferred to Atty. Jimenez, the
principal counsel of accused at that time. He also declared that although
they knew that arraignment would mean waiver of the alleged
irregularities in the conduct of the investigation and preliminary
investigation, he and Atty. Jimenez allowed accused to be arraigned. 103
The defense likewise relied on a number of news accounts reporting the
progress in the investigation of the case. It presented seven (7)
newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila
Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer,
Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's
Journal and Elena Aben of the Manila Bulletin. The bulk of defense
evidence consists of newspaper clippings and the testimonies of the
news reporters, thus:
NESTOR BARRAMEDA, a news reporter of the Manila Times identified
two (2) news reports as having been partly written by him. One was a
news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO
KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila
Times. 104 He, however, clarified that a news report is usually the product
of collaborative work among several reporters. They follow the practice
of pooling news reports where several reporters are tasked to cover one
subject matter. The news editor then compiles the different reports they
file and summarizes them into one story. 105
The defense lifted only certain portions of Exhibit "1" and marked them
in evidence as follows:
Exhibit "1-A":
Bello directed NBI Deputy Director Epimaco Velasco to take over the
investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25,
and three members of a family — Estrellita Vizconde and her daughters,
Carmela, 19, and Anne Marie Jennifer, 7.
Exhibit "1-B"
Police said that Chapman's assailant could have been angered when
Hultman, a 10th grader at the International School in Makati was
escorted home by Chapman after going to a disco.
Exhibit "1-C"
The lone gunman, witnesses told police, first pistol-whipped Hultman.
Exhibit "l-D"
The same witnesses said Chapman and Leino were shot when they tried
to escape.
Exhibit "1-E"
Other angles
Velasco said "we are pursuing two angles" in the Chapman murder.
One, he said, is the jealousy angle and the other is a "highly sensitive"
matter that might involve influential people. 106
Page 34 of 59
Barrameda testified that he had no personal knowledge of the content
of the news items marked as Exhibits "1-C" to "1-D". He just culled them
from previous news reports of other newspapers. He admitted that the
only portion he wrote based on an actual interview with NBI Asst.
Director Velasco was Exhibit "I-E."
Barrameda identified another news item in the July 23, 1991 issue of the
Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN
CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions
thereof, which were not written by Barrameda, 107 were lifted by the
defense and offered in evidence, viz:
Exhibit "2-a"
Superintendent Lucas Managuelod, CIS director for the national capital
region, claims, however, that another security guard, Vic Mangubat, had
testified before the police that another man, not Teehankee, had fired at
Chapman and his companions.
Exhibit "2-b"
The CIS official added that the absence of nitrite or powder burns on
Teehankee's hands as shown by paraffin tests at the CIS laboratory
indicated that he may not have fired the gun. 108
MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two
(2) newspaper clippings which were partly written by him.
One news item, which appeared on the July 17, 1991 issue of the
Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA
SLAY" (Exhibit "3"). 109
Again, the defense marked in evidence certain portions of Exhibit "3",
thus:
Exhibit "3-a"
Witnesses said Hultman talked with the gunman whom she called
"Daddy" shortly before Chapman's shooting.
Exhibit "3-b"
But Ranin said they were also looking into reports that Hultman was a
dancer before she was adopted by her foster parent.
Exhibit "3-c"
Investigations showed that the gunman sped along Caballero street
inside the village after the shooting and was believed to have proceeded
toward Forbes Park using the Palm street gate.
On cross-examination, Marfil admitted that he did not write Exhibits "3-
a" and "3-c". He just reiterated previous reports in other newspapers.
They were based on speculations.
Marfil also wrote some portions of a news item, entitled: "TEEHANKEE
SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue
of the Philippine Daily Inquirer (Exhibit "4"), viz:
Exhibit "4-B"
According to NBI Director Alfredo Lim, the break in the case came when
the witness showed up and said that the gunman was on board a silver-
metallic Lancer.
Exhibit "4-C"
The witness said the gunman was standing a few feet away near the car
and was talking to Hultman, who was shouting "Huwag! Daddy!" several
times. 110
Marfil's source of information was Director Lim. On cross-examination,
Marfil admitted that the news reports marked as Exhibits "3" and "4"
were written based on information available at that time. 111
NIDA MENDOZA, a reporter of the Malaya identified a news report,
entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared
on the July 18, 1991 issue of Malaya. She testified that she wrote a
portion thereof, marked as Exhibit "5-c", and the sources of her
information were several Makati policemen. 112 Exhibit "5-c" reads:
Makati policemen, meanwhile, disputed NBI accounts that Teehankee
was arrested at his house.
They said Teehankee, the last remaining owner of a car with plate control
number 566 who had not been questioned, voluntarily went to police
headquarters upon invitation of Makati police chief Superintendent
Remy Macaspac. 113
The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted
effort of the investigators to implicate accused as the lone gunman; (b)
that there were other suspects aside from accused and that someone
whom Maureen called as "Daddy" was the actual gunman; (c) that the
initial police investigation showed that the gunman's car was a white
Lancer with plate no. 566; and, (d) that after the NBI took over the
investigation, the white Lancer car of the gunman became a silver gray
Lancer of accused and thereafter, he became the gunman.
ITCHIE CABAYAN, a reporter of the People's Journal identified the
portions she wrote in the news item, entitled: ''I WILL HOUND YOU",
which appeared on the October 24, 1991 issue of People's Journal
(Exhibit "6"). She identified the source of her information as Mr. Anders
Hultman himself. 114
The portions thereof were marked in evidence by the defense, viz:
Exhibit "6-a"
"I will be visiting him often and at the most unexpected occasion,"
Hultman said the day after his 17-year old daughter was cremated. 115
Exhibit "6-b"
The day Maureen died, a congressional hearing granted the Hultman
family's request for permission to visit Teehankee in his cell "at anytime
of their choice."
Exhibit "6-c"
"If on my next visit he still refuses to come out and is still hiding behind
the curtain," Hultman said, "Congress told me that I can take the curtain
down and jail authorities will pull him out." 116
Page 35 of 59
ALEX ALLAN, also a reporter of People's Journal co-wrote the news item
marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-
e" 117 which read:
Exhibit "6-d"
"Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was
quoted as telling Vergel de Dios.
Exhibit "6-e"
BIR insiders said Ong has shown a keen interest in the Chapman-
Hultman, Vizconde and Eldon Maguan cases because he belongs to a
secret but very influential multi-sectoral group monitoring graft and
corruption and other crimes in high levels of government and society. 118
Allan was not able to check or verify the information in Exhibit "6-e" given
to him by BIR insiders for the latter refused to be identified. 119
Exhibit "6" and its sub-markings were offered to prove: (a) the alleged
blind and consuming personal rage and bias of Anders Hultman against
accused; and (b) the unwarranted pressure, prejudice and prejudgment
by some congressional leaders in favor of the Hultmans in violation of
due process.
DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified
the news account which appeared on the July 16, 1991 issue of the
Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He
wrote a portion of said article (Exhibit "7-c") and the source of his
information was Camp Crame. 120 It reads:
Exhibit "7-c"
Witnesses said the gunman fled aboard a white Mitsubishi Lancer with
plate number "566." The witnesses cannot tell the plate's control
letters. 121
Veridiano likewise identified a news item which appeared on the July
1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND
WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item
which he wrote were marked in evidence by the defense, viz:
Exhibit "8-a"
At the Criminal Investigation Service, however, an investigator who asked
not to be identified insisted that the NBI got the wrong man. The NBI has
taken over the case from the CIS.
Exhibit "8-c"
He said the CIS will shortly identify the suspect killer whom he described
as "resembling Teehankee but looks much younger."
Exhibit "8-e"
The source said that the police's "prime witness," identified only as
Mangubat, saw everything that happened in the early morning of July 13.
The witness, however, failed to identify Teehankee as the gunman. 122
Veridiano was shown another news report, entitled: "CIS GIVES UP
CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the
Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire news
account, 124 portions of which were marked by the defense in evidence,
thus:
Exhibit "9-a"
The CIS pulled out from the case a day after its so-called "surprise
witness" picked Claudio Teehankee, Jr. from an NBI lineup.
He gathered this information from his source but he was not able to
interview Mangubat himself. 125
Exhibit "9-b"
Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si
Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon
bigla niyang ituturo, said a red-faced Makati investigator who, as usual,
did not want to be identified.
ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire
article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on
the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2)
portions thereof were marked as evidence by the defense, viz:
Exhibit "10-a-1"
The victims were on their way home in Olanileino's Mercedez Benz with
a diplomat's plate number when a white Lancer with plate number PKX-
566 blocked its path.
Exhibit "10-a-2"
US embassy spokesman Stanley Schrager said Chapman's father is a
communications specialist. He said the shooting could be the result of an
altercation on the street. 127
Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the
news account he wrote which appeared on the July 16, 1991 issue of the
Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of
said news item were marked by the defense as follows:
Exhibit "22-b"
. . . He was shot to death by a group of armed men at the corner of
Mahogany and Caballero Sts. in Dasmariñas Village at past 4 a.m. Friday.
Exhibit "22-c"
The NBI sources said that jealousy sparked the slaying of Chapman who
was killed in front of his friends on his way home from a party. The armed
men, on board a white Lancer car, blocked the path of the victim's
Mercedes Benz car inside the village before the shooting.
Exhibit "22-a-1"
The gunmen then alighted from their car and at gunpoint ordered
Chapman to alight from the car. They shot Chapman several times in the
body, while his companions identified as Maureen Hultman, and Jussi
Page 36 of 59
Olanileino, were seriously wounded when the gunmen sprayed the car
with bullets.
The gunmen escaped after the shooting. Lim said he will announce later
the names of the detained suspects after their initial investigation. 128
Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit
"23"), which appeared on the July 18, 1991 issue of the Manila Bulletin,
was introduced by the defense in evidence as follows:
Exhibit "23-a-1"
The NBI said Teehankee was one of four men who blocked Chapman's
car on Mahogany St. in the subdivision.
Exhibit "23-a-2"
Witnesses said they saw Teehankee order Chapman and his two
companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of
their car.
Exhibit "23-a-3"
They identified the car used by the suspect, a silver gray Lancer with plate
No. PDW 566. They added that they saw the same car in the garage of
the Teehankee family. 129
On cross-examination, Vega declared that the source of his two (a)
stories was the NBI and they were based on information available to the
NBI at that time 130
The prosecution recalled to the stand eyewitness VICENTE MANGUBAT
as its rebuttal witness. Mangubat insisted that he was able to identify
accused when he saw the latter at the Makati police station. Her
reiterated that the next day, Pat. Baldado of the Makati police went to
his place of work in Dasmariñas Village and asked him if he was sure
about the identity of the gunman. He told Baldado he was positive.
Baldado then said him he would no longer require him to sign the
statement he prepared for him earlier. 131
LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the
NBI, was also presented as a prosecution rebuttal witness. She testified
that extensive washing of hands or excessive perspiration can eliminate
gunpowder nitrates lodged on skin pores of the hands. Continued
washing with hot water can induce perspiration and remove nitrate
residue embedded in the skin pores. Application of vinegar on the hand
can register the same effect. 132
She testified that their practice at the NBI is to take the paraffin test on a
suspect within 72 hours from the time of the alleged firing of a gun,
during which time, any possible trace of nitrate may still be found. 133
She divulged that questions have been raised regarding the reliability of
the paraffin test. She related that she once attended a training in Baguio
City where they tried to test the accuracy of a paraffin test. In said
training, two (2) NBI agents fired a .38 revolver. One of them washed his
hands. They then subjected both agents to a paraffin test using
diphylamine reagent. Both yielded a negative result. Thus, she opined,
the result of a paraffin test should merely be taken as a corroborative
evidence and evaluated together with other physical evidence. 134
The records show that the case was set for hearing on October 29, 1992
for the presentation by the defense of sur-rebuttal evidence. However, a
day before the scheduled hearing, the defense filed a
Constancia 135 manifesting that it shall waive its right to present sur-
rebuttal evidence, the same being unneccesary. The defense, however,
declared that this is without prejudice to the presentation of its evidence
in the trial proper should the same be necessary.
At the hearing of October 29, 1992, the defense counsels did not appear.
The prosecution moved in open court that the main cases and the
petition for bail be submitted for decision in view of the absence of
defense counsels who had manifested that they would no longer present
their sur-rebuttal evidence. The motion was granted and the parties
were given ten (10) days from receipt of the Order within which to submit
their simultaneous Memorandum. 136 It does not appear that the
defense objected to this Order. The records show that the defense even
filed a motion asking for additional time to file its Memorandum. 137 In
due time, both parties submitted their respective Memorandum.
On December 22, 1992, the trial court convicted accused CLAUDIO
TEEHANKEE, JR. of the crimes charged. 138The dispositive portion of the
Decision reads:
WHEREFORE, premises considered, the Court hereby renders judgment:
(1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the offense of Murder, qualified
by treachery, for the fatal shooting of Roland John Chapman, and
sentencing said accused to suffer imprisonment of Reclusion perpetua,
and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos
(P50, 000.00), Philippine Currency, plus moderate or temperate and
exemplary damages in the sum of Five Hundred Thousand Pesos
(P500,000.00), Philippine Currency;
(2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the offense of Murder, qualified
by treachery, for the fatal shooting of Maureen Navarro Hultman, and
sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay
the heirs of the said deceased the sum of Fifty Thousand Pesos
(P50,000.00), Philippine Currency, plus the sums of Two Million Three
Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three
Centavos (P2,350,461.83), Philippine Currency, as actual damages;
Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of
earning capacity of the said deceased; and One Million Pesos
(P1,000,000.00), Philippine Currency, as moral, moderate and exemplary
damages;
(3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder,
qualified by treachery, for the shooting of Jussi Olavi Leino, and
sentencing him to suffer the indeterminate penalty of eight (8) years
of prision mayor, as minimum, to ten (10) years and one (1) day of prision
mayor, as maximum, and to pay the said offended party the sum of Thirty
Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One
Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-
Four Centavos (P118,369.84), Philippine Currency, and another sum
equivalent in Philippine Pesos of U.S. $55,600.00, both as actual
damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00,
as loss of earning capacity of said offended party; and One Million Pesos
(P1,000,000.00), Philippine Currency, as moral, moderate and exemplary
damages.
Page 37 of 59
(4) In all these three cases ordering said accused to pay all the offended
parties the sum of Three Million Pesos (P3,000,000.00), Philippine
Currency, as and for attorney's fees and expenses of litigation; and
(5) To pay the costs in these three cases.
Consequently the petition for bail is hereby denied for utter lack of merit.
SO ORDERED.
Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan,
Jr. He filed a Motion for New Trial, 139alleging for the first time that the
trial court erred in considering as submitted for decision not only the
petition for bail but also the case on the merits. He claimed that
accused's right to adduce further evidence was violated. His motion for
new trial was denied.
Accused interposed the present appeal. 140 He contends that:
I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN
POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS
THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO
HULTMAN.
II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE
ACCUSED BEYOND REASONABLE DOUBT.
III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS
MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY
DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL.
IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF
CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS
ATTENDED BY TREACHERY.
V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND
EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY.
VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE
MILLION PESOS (P3,000,000.00).
VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE
MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT
GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL
EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING
THE ACCUSED'S MOTION FOR NEW TRIAL.
We shall discuss these alleged errors in seriatim.
Appellant was convicted on the strength of the testimonies of three (3)
eyewitnesses who positively identified him as the gunman. He vigorously
assails his out-of-court identification by these eyewitnesses.
He starts by trying to discredit the eyeball account of Jussi Leino, the lone
surviving victim of the crimes at bar. Appellant urges:
First, that Leino's identification of him outside an unoccupied house in
Forbes Park was highly irregular.
Second, that Leino saw his pictures on television and the newspapers
before he identified him.
Third, that Leino's interview at the hospital was never put in writing.
Fourth, that the sketch of appellant based on the description given by
Leino to the CIS agents was suppressed by the NBI. It is surmised that the
sketch must have been among the evidence turned over to the NBI when
the latter assumed jurisdiction over the investigation.
Lastly, that Leino could not have remembered the face of appellant. The
shooting lasted for only five (5) minutes. During that period, his gaze
could not have been fixed only on the gunman's face. His senses were
also dulled by the five (5) bottles of beer he imbibed that night.
It is understandable for appellant to assail his out-of-court identification
by the prosecution witnesses in his first assignment of error. Eyewitness
identification constitutes vital evidence and, in most cases, decisive of
the success or failure of the prosecution. Yet, while eyewitness
identification is significant, it is not as accurate and authoritative as the
scientific forms of identification evidence such as the fingerprint or DNA
testing. Some authors even describe eyewitness evidence as "inherently
suspect." 141 The causes of misidentification are known, thus:
xxx xxx xxx
Identification testimony has at least three components. First, witnessing
a crime, whether as a victim or a bystander, involves perception of an
event actually occurring. Second, the witness must memorize details of
the event. Third, the witness must be able to recall and communicate
accurately. Dangers of unreliability in eyewitness testimony arise at each
of these three stages, for whenever people attempt to acquire, retain,
and retrieve information accurately, they are limited by normal human
fallibilities and suggestive influences. (Emphasis Supplied) 142
Out-of-court identification is conducted by the police in various ways. It
is done thru show-ups where the suspect alone is brought face to face
with the witness for identification. It is done thru mug shots where
photographs are shown to the witness to identify the suspect. It is also
done thru line-ups where a witness identifies the suspect from a group
of persons lined up for the purpose. Since corruption of out-of-
court identification contaminates the integrity of in-court identification
during the trial of the case, courts have fashioned out rules to assure its
fairness and its compliance with the requirements of constitutional due
process. In resolving the admissibility of and relying on out-of-court
identification of suspects, courts have adopted the totality of
circumstances test where they consider the following factors, viz: (1) the
witness' opportunity to view the criminal at the time of the crime; (2) the
witness' degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) the level of certainty demonstrated
by the witness at the identification; (5) the length of time between the
crime and the identification; and, (6) the suggestiveness of the
identification procedure. 143
Using the totality of circumstances test, we hold that the alleged
irregularities cited by appellant did not result in his misidentification nor
was he denied due process. There is nothing wrong in Leino's
identification of appellant in an unoccupied house in Forbes Park. The
records reveal that this mode was resorted to by the authorities for
security reasons. 144 The need for security even compelled that Leino be
fetched and escorted from his house in Forbes Park by U.S. embassy
security officials and brought to the house where he was to make the
identification. The Leinos refused to have the identification at the NBI
Page 38 of 59
office as it was cramped with people and with high security
risk. 145 Leino's fear for his safety was not irrational. He and his
companions had been shot in cold blood in one of the exclusive,
supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin,
Chief of the Special Operations Group of the NBI, correctly testified that
there is no hard and fast rule as to the place where suspects are identified
by witnesses. Identification may be done in open field. It is often done in
hospitals while the crime and the criminal are still fresh in the mind of
the victim. 146
Appellant cannot also gripe that Leino saw his pictures and heard radio
and TV accounts of the shooting before he personally identified him.
Indeed, the records show that on July 15, 1991, while Leino was still in
the hospital, he was shown three (3) pictures of different men by the
investigators. He identified appellant as the gunman from these pictures.
He, however, categorically stated that, before the mug shot
identification, he has not seen any picture of appellant or read any report
relative to the shooting incident. 147 The burden is on appellant to prove
that his mug shot identification was unduly suggestive. Failing proof of
impermissible suggestiveness, he cannot complain about the admission
of his out-of-court identification by Leino.
We have no reason to doubt the correctness of appellant's identification
by Leino. The scene of the crime was well-lighted by a Meralco lamp post.
Appellant was merely 2-3 meters away when he shot Leino. The incident
happened for a full five (5) minutes. Leino had no ill-motive to falsely
testify against appellant. His testimony at the trial was straightforward.
He was unshaken by the brutal cross-examination of the defense
counsels. He never wavered in his identification of appellant. When
asked how sure he was that appellant was responsible for the crime, he
confidently replied: "I'm very sure. It could not have been somebody
else." 148
Appellant cannot likewise capitalize on the failure of the investigators to
reduce to a sworn statement the information revealed by Leino during
his hospital interviews. It was sufficiently established that Leino's
extensive injuries, especially the injury to his tongue, limited his mobility.
The day he identified appellant in the line-up, he was still physically
unable to speak. He was being fed through a tube inserted in his
throat. 149 There is also no rule of evidence which requires the rejection
of the testimony of a witness whose statement has not been priorly
reduced to writing. Reliance by appellant on the case of People v.
Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused
was acquitted not solely on the basis of delay in taking his statement, but
mainly on the finding that the prosecution evidence was, at best,
circumstancial and "suspiciosly short in important details," there being
no investigation whatsoever conducted by the police.
We also reject appellant's contention that the NBI suppressed the sketch
prepared by the CIS on the basis of the description given by Leino. There
is nothing on the record to show that said sketch was turned over by the
CIS to the NBI which could warrant a presumption that the sketch was
suppressed. The suspicion that the sketch did not resemble appellant is
not evidence. It is unmitigated guesswork.
We are not likewise impressed with the contention that it was incredible
for Leino to have remembered appellant's face when the incident
happened within a span of five (5) minutes. Five (5) minutes is not a short
time for Leino to etch in his mind the picture of appellant. Experience
shows that precisely because of the unusual acts of bestiality committed
before their eyes, eyewitnesses, especially the victims to a crime, can
remember with a high degree of reliability the identity of
criminals. 151 We have ruled that the natural reaction of victims of
criminal violence is to strive to see the appearance of their assailants and
observe the manner the crime was committed. Most often, the face end
body movements of the assailant create an impression which cannot be
easily erased from their memory. 152 In the case at bar, there is absolutely
no improper motive for Leino to impute a serious crime to appellant. The
victims and appellant were unknown to each other before their chance
encounter. If Leino identified appellant, it must be because appellant was
the real culprit.
Appellant also assails his identification by Cadenas. He contends that
Cadenas did not witness the crime. He stresses that when the
Dasmariñas security force and the Makati police conducted an on-the-
spot investigation on the day of the incident, neither came across
Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent
interviewed Cadenas and asked if he saw the incident. He merely replied:
"Nakita ko pero patay na." He did not volunteer information to anyone
as to what he supposedly witnessed. That same night, the NBI
subpoenaed him for investigation. He went to the NBI the next morning.
It was only the next day, July 16, 1991, that he gave his statement to the
NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI
tortured him.
We reject appellant's submission. Cadenas' initial reluctance to reveal to
the authorities what he witnessed was sufficiently explained during the
trial. He related that he feared for his and his family's safety. His fear was
not imaginary. He saw with his own eyes the senseless violence
perpetrated by appellant. He knew appellant belonged to an influential
family. It was only after consistent prodding and assurance of protection
from NBI officials that he agreed to cooperate with the
authorities. 153 The Court has taken judicial notice of the natural
reticence of witnesses to get involved in the solution of crimes
considering the risk to their lives and limbs. In light of these all too real
risks, the court has not considered the initial reluctance of fear-gripped
witnesses to cooperate with authorities as an authorities as an indicium
of credibility. 154 It will not depart from this ruling.
Appellant's assertion that Cadenas was tortured by the NBI is not borne
out by the records. Supposedly, Cadenas passed on to his superior, a
certain Ponferrada, information about his torture. The allegation is an
out and out hearsay as Ponferrada was not presented in the witness
stand. Cadenas himself stoutly denied this allegation of torture. The claim
of torture is also belied by the fact that Cadenas' entire family was
allowed to stay with him at the NBI headquarters and likewise extended
protection. 155
Appellant then discredits his identification by VICENTE MANGUBAT,
citing the testimony of defense witness Pat. James Baldado of the Makati
Police. Pat. Baldado testified that Mangubat failed to identify appellant
as the gunman the first time he was brought to the Makati police station.
Mangubat, however, belied Baldado's story. He declared he positively
identified appellant as the gunman at the Makati police station. He
averred that the day after he identified appellant, Pat. Baldado returned
to his place of work in Dasmariñas and asked him again whether
appellant was the gunman. Again, he replied in the affirmative.
Forthwith, Pat. Baldado said he would no longer ask him to sign a
statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said
statement previously prepared by Baldado, Mangubat was supposed to
state that appellant, whom he saw at the Makati police station, was NOT
the gunman. We give more weight to the testimony of Mangubat. We
find nothing in the records to suspect that Mangubat would perjure
himself. The Court cannot be as generous to Pat. Baldado of the Makati
Police. Mr. Hultman has proved that the Makati police, including some of
its jail officials, gave appellant favored treatment while in their custody.
The anomaly triggered nothing less than a congressional investigation.
Page 39 of 59
II
We now rule on appellant's second assignment of error, i.e., that the trial
court erred in not holding that the prosecution failed to establish his guilt
beyond reasonable doubt.
First, he claims the trial court erred in citing in its Decision his
involvement in previous shooting incidents for this contravenes the
rule 157 that evidence that one did or omitted to do a certain thing at one
time is not admissible to prove that he did or omitted to do the same or
similar thing at another time. Second, the NBI failed to conduct an
examination to compare the bullets fired from the gun at the scene of
the crime with the bullets recovered from the body of Chapman. Third,
the prosecution eyewitnesses described the gunman's car as white, but
the trial court found it to be silver mettalic gray. Fourth, appellant could
not have been the gunman for Mangubat, in his statement dated July 15,
1991, said that he overheard the victim Maureen Hultman plead to the
gunman, thus: "Please, don't shoot me and don't kill me. I promise
Mommy, Daddy." Appellant also contends that a maid in a house near
the scene of the crime told Makati police Alberto Fernandez that she
heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed
accused's car from Dasmariñas Village to the NBI office which proved that
the same was not in good running condition. Lastly, the result of the
paraffin test conducted on appellant showed he was negative of nitrates.
Appellant points to other possible suspects, viz:. ANDERS HULTMAN,
since one of the eyewitnesses was quoted in the newspapers as having
overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b)
JOSE MONTAÑO, another resident of Dasmariñas Village, who had a
white Lancer car, also bearing license plate number 566.
We reject appellant's thesis as bereft of merit.
Appellant cannot hope to exculpate himself simply because the trial
judge violated the rule on res inter alios actawhen he considered his
involvement in previous shooting incidents. This stance is a specie of a
mid-1800 rule known as the English Exchequer Rule pursuant to which "a
trial court's error as to the admission of evidence was presumed to have
caused prejudice and therefore, almost automatically required a new
trial." 158 The Exchequer rule has long been laid to rest for even English
appellate courts now disregard an error in the admission of evidence
"unless in its opinion, some substantial wrong or miscarriage (of justice)
has been occasioned." 159 American courts adopted this approach
especially after the enactment of a 1915 federal statute which required
a federal appellate court to "give judgment after an examination of the
entire record before the court, without regard to technical errors,
defects, or exceptions which do not affect the substantial rights of the
parties." 160 We have likewise followed the harmless error rule in our
jurisdiction. In dealing with evidence improperly admitted in trial, we
examine its damaging quality and its impact to the substantive rights of
the litigant. If the impact is slight and insignificant, we disregard the error
as it will not overcome the weight of the properly admitted evidence
against the prejudiced party. 161
In the case at bar, the reference by the trial judge to reports about the
troublesome character of appellant is a harmless error. The reference is
not the linchpin of the inculpatory evidence appreciated by the trial judge
in convicting appellant. As aforestated, the appellant was convicted
mainly because of his identification by three (3) eyewitnesses with high
credibility.
The NBI may have also failed to compare the bullets fired from the fatal
gun with the bullets found at the scene of the crime. The omission,
however, cannot exculpate appellant. The omitted comparison cannot
nullify the evidentiary value of the positive identification of appellant.
There is also little to the contention of appellant that his Lancer car was
not in running condition. Allegedly, this was vicariously proved when the
NBI towed his car from Dasmariñas Village where it was parked to the
NBI office. Again, the argument is negated by the records which show
that said car was towed because the NBI could not get its ignition key
which was then in the possession of appellant. Clearly, the car was towed
not because it was not in running condition. Even appellant's evidence
show that said car could run. After its repairs, appellant's son, Claudio
Teehankee III, drove it from the repair shop in Banawe, Quezon City to
Dasmariñas Village, in Makati, where it was
parked. 162
Nor are we impressed by the alleged discrepancies in the eyewitnesses'
description of the color of the gunman's car. Leino described the car as
light-colored; Florece said the car was somewhat white ("medyo
puti"); 163 Mangubat declared the car was white; 164 and Cadenas
testified it was silver metallic gray. 165 These alleged discrepancies
amount to no more than shades of differences and are not meaningful,
referring as they do to colors white, somewhat white and silver metallic
gray. Considering the speed and shocking nature of the incident which
happened before the break of dawn, these slight discrepancies in the
description of the car do not make the prosecution eyewitnesses
unworthy of credence.
Appellant's attempt to pin the crimes at bar on Anders Hultman, the
adoptive father of Maureen Hultman, deserves scant consideration.
Appellant cites a newspaper item 166 where Maureen was allegedly
overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy."
The evidence on record, however, demonstrates that Anders Hultman
could not have been the gunman. It was clearly established that Maureen
could not have uttered said statement for two (2) reasons: Maureen did
not speak Tagalog, and she addressed Anders Hultman as "Papa," not
"Daddy." 167Moreover, Leino outrightly dismissed this suspicion. While
still in the hospital and when informed that the Makati police were
looking into this possibility, Leino flatly stated that Anders Hultman was
NOT the gunman. 168 Leino is a reliable witness.
Appellant cannot also capitalize on the paraffin test showing he was
negative of nitrates. Scientific experts concur in the view that the paraffin
test has ". . . proved extremely unreliable in use. The only thing that it
can definitely establish is the presence or absence of nitrates or nitrites
on the hand. It cannot be established from this test alone that the source
of the nitrates or nitrites was the discharge of a firearm. The person may
have handled one or more of a number of substances which give the
same positive reaction for nitrates or nitrites, such as explosives,
fireworks, fertilizers, pharmaceuticals, and leguminous plants such as
peas, beans, and alfalfa. A person who uses tobacco may also have
nitrate or nitrite deposits on his hands since these substances are present
in the products of combustion of tobacco." 169 In numerous rulings, we
have also recognized several factors which may bring about the absence
of gunpowder nitrates on the hands of a gunman, viz: when the assailant
washes his hands after firing the gun, wears gloves at the time of the
shooting, or if the direction of a strong wind is against the gunman at the
time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora
Vallado, testified and confirmed that excessive perspiration or washing
of hands with the use of warm water or vinegar may also remove
gunpowder nitrates on the skin. She likewise opined that the conduct of
the paraffin test after more than seventy-two (72) hours from the time
of the shooting may not lead to a reliable result for, by such time, the
nitrates could have already been removed by washing or
perspiration. 171 In the Report 172 on the paraffin test conducted on
Page 40 of 59
appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant
was tested for the presence of nitrates, more than 72 hours has already
lapsed from the time of the alleged shooting.
III
In his third assigned error, appellant blames the press for his conviction
as he contends that the publicity given to his case impaired his right to
an impartial trial. He postulates there was pressure on the trial judge for
high-ranking government officials avidly followed the developments in
the case (as no less than Vice-President Joseph Estrada and then
Department of Justice Secretary Franklin Drilon attended some of the
hearings and, President Corazon Aquino even visited victim Maureen
Hultman while she was still confined at the hospital). He submits that the
trial judge failed to protect him from prejudicial publicity and disruptive
influences which attended the prosecution of the cases. He claims there
were placards displayed during the hearing of the cases, spectators
inside the courtroom clapped their hands and converted the proceedings
into a carnival. In another instance, he was allegedly given the "finger
sign" by several young people while he was leaving the courtroom on his
way back to his cell.
We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all high
profile and high stake criminal trials. Then and now, we rule that the right
of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances an accused's right to a fair trial for, as
well pointed out, "a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal
field . . . The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting in the police,
prosecutors, and judicial processes to extensive public scrutiny and
criticism." 173
Pervasive publicity is not per se prejudicial to the right of an accused to
fair trial. The mere fact that the trial of appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For
one, it is impossible to seal the minds of members of the bench from pre-
trial and other off-court publicity of sensational criminal cases. The state
of the art of our communication system brings news as they happen
straight to our breakfast tables and right to our bedrooms. These news
form part of our everyday menu of the facts and fictions of life. For
another, our idea of a fair and impartial judge is not that of a hermit who
is out of touch with the world. We have not installed the jury system
whose members are overly protected from publicity lest they lose their
impartiality. Criticisms against the jury system are mounting and Mark
Twain's wit and wisdom put them all in better perspective when he
observed: "When a gentleman of high social standing, intelligence, and
probity swears that testimony given under the same oath will outweigh
with him, street talk and newspaper reports based upon mere hearsay,
he is worth a hundred jurymen who will swear to their own ignorance
and stupidity . . . Why could not the jury law be so altered as to give men
of brains and honesty an equal chance with fools and
miscreants?" 174 Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to
a litigation. Their mere exposure to publications and publicity stunts does
not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of
the trial judge due to the barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al. v. Alejandro, et
a1., 175 we rejected this standard of possibility of prejudice and adopted
the test of actual prejudice as we ruled that to warrant a finding of
prejudicial publicity, there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, the records do not show that the
trial judge developed actual bias against appellant as a consequence of
the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial judge
acquired a fixed opinion as a result of prejudicial publicity which is
incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not
discharged the burden.
We have minutely examined the transcripts of the proceedings and they
do not disclose that the trial judge allowed the proceedings to turn into
a carnival. Nor did he consent to or condone any manifestation of unruly
or improper behavior or conduct inside the courtroom during the trial of
the case at bar. The transcripts reveal the following:
1. At the August 14, 1991 hearing, the defense counsel called the
attention of the court to the visible display of a placard inside the
courtroom. Acting on the manifestation, the trial judge immediately
directed that the placard be hidden. Only then did he order the start of
the arraignment of accused. 176
On the same hearing, the defense counsel asked for the exclusion of the
media after they had enough opportunity to take pictures. The court
granted defense's request, noting that the courtroom was also too
crowded. 177
2. During the testimony of Domingo Florece, an argument ensued
between the defense lawyer and the fiscal. When part of the audience
clapped their hands, the defense counsel invoked Rule 119, Section 13 of
the Rules of Court and moved for the exclusion of the public. Assistant
Prosecutor Villa-Ignacio objected on the ground that the public was not
unruly. The trial judge noted that there were yet no guidelines drafted by
the Supreme Court regarding media coverage of the trial
proceedings. 178Collaborating defense counsel, Atty. Malvar, complained
that the outpouring of sympathy by spectators inside the courtroom has
turned the proceedings into a carnival. He also manifested that he
personally saw that when accused was being brought back to his cell
from the courtroom, a group of young people were pointing dirty fingers
at accused in full view of policemen. Forthwith, the trial judge declared
that he could not be dissuaded by public sentiments. He noted that the
clapping of hands by the public was just a reaction at the spur of the
moment. He then admonished the audience not to repeat it. 179
3. At the hearing of July 14, 1992, the parties again argued on the
coverage of the trial by the press. The defense alleged that the media
coverage will constitute mistrial and deny accused's constitutional right
to due process. It invoked the provision in the Rules of Court which allows
the accused to exclude everybody in the courtroom, except the organic
personnel. The prosecutor, however, argued that exclusion of the public
can be ordered only in prosecution of private offenses and does not apply
to murder cases. He added that the public is entitled to observe and
witness trial of public offenses. He quoted the U.S. case of Sheppard v.
Maxwell 180 where it was held: "A responsible press is always regarded as
the handmaiden of effective judicial administration especially in the
criminal field. The press does not simply publish information about trials
but guards against the miscarriage of justice by subjecting the police, the
prosecutors and judicial processes to extensive public scrutiny and
criticism. What transpires in the courtrooms public property." The trial
judge then ruled that the media should be given a chance to cover the
proceedings before the trial proper but, thereafter, he prohibited them
from taking pictures during the trial. They were allowed to remain inside
Page 41 of 59
the courtroom but were ordered to desist from taking live coverage of
the proceedings. 181
4. At the August 14, 1992 hearing, before the hearing began, the trial
judge gave the media two (2) minutes to take video coverage and no
more. Trial then ensued. 182
5. At the September 8, 1992 hearing, the trial judge again gave the media
two (2) minutes to take pictures before the trial proper. Afterwards, the
reporters were duly admonished to remain silent, to quietly observe the
proceedings and just take down notes. 183
6 On September 10, 1992 before the start of the afternoon session, the
judge admonished the media people present in the courtroom to stop
taking pictures. 184
Parenthetically, appellant should be the last person to complain against
the press for prejudicial coverage of his trial. The records reveal he
presented in court no less than seven (7) newspaper reporters and relied
heavily on selected portions of their reports for his defense. The
defense's documentary evidence consists mostly of newspaper clippings
relative to the investigation of the case at bar and which appeared to cast
doubt on his guilt. The press cannot be fair and unfair to appellant at the
same time.
Finally, it would not be amiss to stress that on May 29, 1992, the trial
judge voluntarily inhibited himself from further hearing the case at bar
to assuage appellant's suspicion of bias and partiality. 185 However, upon
elevation of the trial judge's voluntary Order of Inhibition to this Court,
we directed the trial judge to proceed with the trial to speed up the
administration of justice. 186 We found nothing in the conduct of the
proceedings to stir any suspicion of partiality against the trial judge.
IV
In his fourth assigned error, appellant claims that treachery was not
present in the killing of Hultman and Chapman, and the wounding of
Leino for it was not shown that the gunman consciously and deliberately
adopted particular means, methods and forms in the execution of the
crime. Appellant asserts that mere suddenness of attack does not prove
treachery.
The three (3) Informations charged appellant with having committed the
crimes at bar with treachery and evident premeditation. Evident
premeditation was correctly ruled out by the trial court for, admittedly,
the shooting incident was merely a casual encounter or a chance meeting
on the street since the victims were unknown to appellant and vice-versa
It, however, appreciated the presence of the qualifying circumstance of
treachery.
We hold that the prosecution failed to prove treachery in the killing of
Chapman. Prosecution witness Leino established the sequence of events
leading to the shooting. He testified that for no apparent reason,
appellant suddenly alighted from his car and accosted him and Maureen
Hultman who were then walking along the sidewalk. Appellant
questioned who they were and demanded for an I.D. After Leino handed
him his I.D., Chapman appeared from behind Leino and asked what was
going on. Chapman then stepped down on the sidewalk and inquired
from appellant what was wrong. There and then, appellant pushed
Chapman, pulled a gun from inside his shirt, and shot him. The gun attack
was unexpected. "Why did you shoot me?" was all Chapman could utter.
Concededly, the shooting of Chapman was carried out swiftly and left
him with no chance to defend himself. Even then, there is no evidence
on record to prove that appellant consciously and deliberately adopted
his mode of attack to insure the accomplishment of his criminal design
without risk to himself. It appears to us that appellant acted on the spur
of the moment. Their meeting was by chance. They were strangers to
each other. The time between the initial encounter and the shooting was
short and unbroken. The shooting of Chapman was thus the result of a
rash and impetuous impulse on the part of appellant rather than a
deliberate act of will. We have consistently ruled that mere suddenness
of the attack on the victim would not, by itself, constitute
treachery. 187 Hence, absent any qualifying circumstance, appellant
should only be held liable for Homicide for the shooting and killing of
Chapman.
As to the wounding of Jussi Leino and the killing of Maureen Hultman, we
hold that treachery clearly attended the commission of the crimes. The
evidence shows that after shooting Chapman in cold blood, appellant
ordered Leino to sit on the pavement. Maureen became hysterical and
wandered to the side of appellant's car. When appellant went after her,
Maureen moved around his car and tried to put some distance between
them. After a minute or two, appellant got to Maureen and ordered her
to sit beside Leino on the pavement. While seated, unarmed and begging
for mercy, the two were gunned down by appellant. Clearly, appellant
purposely placed his two victims in a completely defenseless position
before shooting them. There was an appreciable lapse of time between
the killing of Chapman and the shooting of Leino and Hultman — a period
which appellant used to prepare for a mode of attack which ensured the
execution of the crime without risk to himself. Treachery was thus
correctly appreciated by the trial court against appellant insofar as the
killing of Hultman and the wounding of Leino are concerned.
V and VI
We come now to the civil liability imposed against appellant. Appellant
posits that the awards of moral and exemplary damages and for loss of
earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino
were exorbitant. He likewise claims that the trial court's award of
attorney's fees was excessive.
In its Decision, the trial court awarded to Jussi Leino end the heirs of
victims Hultman and Chapman the following damages:
1. For the murder of Roland John Chapman, appellant was sentenced to
pay the heirs of the deceased the sum of Fifty Thousand Pesos
(P50,000.00) as indemnity for death and the sum of Five Hundred
Thousand Pesos (P500,000.00) as moderate or temperate and exemplary
damages.
2. For the murder of Maureen Navarro Hultman, appellant was
sentenced to pay the heirs of the deceased the sum of: Fifty Thousand
Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred
Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos
(P2,350,461.83) as actual damages; Thirteen Million Pesos
(P13,000,000.00) for loss of earning capacity of deceased; and, One
Million Pesos as moral, moderate and exemplary damages.
3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay:
Thirty thousand pesos (P30,000.00) as indemnity for the injury; One
Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-
Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos
of U.S.$55,600.00, both as actual damages; an amount equivalent in
Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi
Page 42 of 59
Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and
exemplary damages.
4. In all three cases, appellant was also ordered to pay each of the
offended parties the sum of One Million Pesos (or a total of three million
pesos) for attorney's fees and expenses of litigation.
5. Costs of litigation. 188
The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in
detail the matter of damages recoverable in case of death arising from a
felony, thus:
When the commission of a crime results in death, the civil obligations
arising therefrom are governed by penal laws, ". . . subject to the
provisions of Art. 2177, and of the pertinent provisions of Chapter 2,
Preliminary Title on Human Relations, and of Title XVIII of this Book (Book
IV) regulating damages." (Art. 1161, Civil Code)
Thus, "every person criminally liable for a felony is also civilly liable." (Art.
100, Revised Penal Code). This civil liability, in case the felony involves
death, includes indemnification for consequential damages (Art. 104, id.)
and said consequential damages in turn include ". . . those suffered by
his family or by a third person by reason of the crime." (Art. 107, id.) Since
these provisions are subject, however, as above indicated, to certain
provisions of the Civil Code, (w)e will now turn to said provisions.
The general rule in the Civil Code is that:
In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission
complained of. It is not necessary that such damages have been foreseen
or could have reasonably foreseen by the defendant. (Art. 2202)
When, however, the crime committed involves death, there is Art. 2206
which provides thus:
The amount of damages for death caused by a crime or quasi-delict shall
be at least three thousand pesos even though there may have been
mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, and the indemnity shall be paid to the heirs of the latter;
such indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the time of his
death;
(2) If the deceased was obliged to give support according to the
provisions of article 291, the recipient who is not an heir called to the
descendant's inheritance by law of testate or intestate succession, may
demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate or illegitimate descendants and ascendants of
the deceased may demand moral damages for mental anguish by reason
of the death of the deceased.
The amount of P3,000 referred to in the above article has already been
increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil.
426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L-
18793, promulgated October 11, 1968 190, and it must be stressed that
this amount, as well as the amount of moral damages, may be
adjudicated even without proof of pecuniary loss, the assessment of the
moral damages being "left to the discretion of the court, according to the
circumstances of each case." (Art. 2216)
Exemplary damages may also be imposed as a part of this civil liability
when the crime has been committed with one or more aggravating
circumstances, such damages being "separate and distinct from fines and
shall be paid to the offended party." (Art. 2230). Exemplary damages
cannot however be recovered as a matter of right; the court will decide
whether or not they should be given. (Art. 2233)
In any event, save as expressly provided in connection with the indemnity
for the sole fact of death (1st par., Art. 2206) and is cases wherein
exemplary damages are awarded precisely because of the attendance of
aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated
may be respectively increased or lessened according to the aggravating
or mitigating circumstances," (Art. 2204) "but the party suffering the loss
or injury must exercise the diligence of a good father of a family to
minimize the damages resulting from the act or omission in question."
(Art. 2203) "Interest as a part of the damages, may, in a proper case, be
adjudicated in the discretion of the Court." (Art. 2211) As to attorneys'
fees and expenses of litigation, the same may be recovered only when
exemplary damages have been granted (Art. 2208, par. 1) or . . . when
there is a separate civil action.
Stated differently, when death occurs as a result of a crime, the heirs of
the deceased are entitled to the following items of damages:
1. As indemnity for the death of the victim of the offense — P12,000.00
(now P50,000.00), without the need of any evidence or proof of
damages, and even though there may have been mitigating
circumstances attending the commission of the offense.
2. As indemnity for loss of earning capacity of the deceased — an amount
to be fixed by the court according to the circumstances of the deceased
related to his actual income at the time of death and his probable life
expectancy, the said indemnity to be assessed and awarded by the court
as a matter of duty, unless the deceased had no earning capacity at said
time on account of permanent disability not caused by the accused. If the
deceased was obliged to give support, under Art. 291, Civil Code, the
recipient who is not an heir, may demand support from the accused for
not more than five years, the exact duration to be fixed by the court.
3. As moral damages for mental anguish, — an amount to be fixed by the
court. This may be recovered even by the illegitimate descendants and
ascendants of the deceased.
4. As exemplary damages, when the crime is attended by one or more
aggravating circumstances, — an amount to be fixed in the discretion of
the court, the same to be considered separate from fines.
5. As attorney's fees and expenses of litigation, — the actual amount
thereof, (but only when a separate civil action to recover civil liability has
been filed or when exemplary damages are awarded).
6. Interests in the proper cases.
7. It must be emphasized that the indemnities for loss of earning capacity
of the deceased and for moral damages are recoverable separately from
and in addition to the fixed sum of P12,000.00 (now P50,000.00)
Page 43 of 59
corresponding to the indemnity for the sole fact of death, and that these
damages may, however, be respectively increased or lessened according
to the mitigating or aggravating circumstances, except items 1 and 4
above, for obvious reasons. 191
We shall first review the damages awarded to the heirs of ROLAND JOHN
CHAPMAN in light of the law and the case law.
Appellant claims that the award of Five Hundred Thousand (P500,000.00)
pesos as moderate or temperate and exemplary damages to the heirs of
Roland John Chapman was baseless.
We start with the observation that the trial court should not have lumped
together the awards for moderate or temperate and exemplary damages
at Five Hundred Thousand Pesos (P500,000.00), without specifying the
particular amount which corresponds to each, as they are of a different
kind. We shall, however, consider their propriety and reasonableness.
The amount of Five Hundred Thousand (P500,000.00) pesos cannot be
given as temperate or moderate damages for the records do not show
any basis for sustaining the award. Nor can it be given as exemplary
damages. The killing of Chapman was not attended by either evident
premeditation or treachery. Be that as it may, the award can be
considered as one for moral damages under Article 2206 (3) of the New
Civil Code. 192 It states:
Art. 2206. The amount of damages for death caused by a crime . . . shall
be at least (fifty thousand pesos, under current jurisprudence) . . . In
addition:
xxx xxx xxx
(3) The spouse, legitimate or illegitimate descendants and ascendants of
the deceased may demand moral damages for mental anguish by reason
of the death of the deceased.
Moreover, considering the shocking and senseless aggression committed
by appellant, we increase the amount of moral damages to One Million
(P1,000,000.00) pesos for the death of Chapman.
We next rule on the legality of damages awarded to the heirs of
MAUREEN NAVARRO HULTMAN.
Appellant argues that the damages for the death of Maureen should be
awarded to her mother, Vivian Hultman, and her natural father. He
contends that under Article 352 of the New Civil Code, Anders Hultman
as adoptive father of Maureen, is not entitled to said award. Only the
parents by nature of Maureen should inherit from her.
We reject the argument. Under the Family Code which was already in
effect at the time of Maureen's death, Anders Hultman, as adoptive
father, is entitled to the award made by the trial court. Article 190 of the
Family Code provides:
xxx xxx xxx
(2) When the parents, legitimate or illegitimate, or the legitimate
descendants of the adopted concur with the adopters, they shall divide
the entire estate, one-half to be inherited by the parents or ascendants
and the other half, by the adopters;
xxx xxx xxx
(5) When only the adopters survive, they shall inherit the entire estate;
It does not appear on the records whether Maureen was survived by her
natural father. During the trial of these cases, only Vivian and Anders
Hultman testified on their claim of damages. Hence, we find that the
award of damages in their favor has sufficient factual and legal basis.
Appellant also urges that the award to the heirs of Maureen Hultman of
One Million Pesos (P1,000,000.00) as moral and exemplary damages is
unjustified or, at the very least, exorbitant and should be reduced.
We hold that the award of One Million (P1,000,000.00) pesos is amply
justified by the circumstances. The records reveal that Maureen
recovered between life and death for ninety-seven (97) days. Her family
experienced the peaks and valleys of unspeakable suffering. During that
time, she underwent brain surgery three (3) times. Her condition was
never stable and remained critical. It was always touch and go with
death. She could not be left alone at the hospital. Her parents had to be
perpetually by her side at least six (6) to seven (7) hours daily. After the
shooting, their siblings had to be sent back to Sweden for their safety.
Left unattended, her family's business took a downspin. Soon, her
family's assets were depleted, then wiped out. A total of twenty-three
(23) doctors attended to her and their bills ballooned without
abatement. They were forced to rely on the goodness of the gracious.
Her family started receiving contributions from other people to defray
the medical expenses and hospital bills. 193 Maureen never regained
consciousness until her demise on October 17, 1991, at the tender age
of seventeen. Under the foregoing circumstances, we thus find the
award of One Million Pesos (P1,000,000.00) as moral damages to be
reasonable.
Moreover, we find that the grant of exemplary damages is called for by
the circumstances of the case. Under Article 2229 of the Civil Code, 194 in
addition to the award of moral damages, exemplary or corrective
damages may be adjudged in order to deter the commission of similar
acts in the future. The award for exemplary damages is designed to
permit the courts to mould behavior that has socially deleterious
consequences. Its imposition is required by public policy to suppress the
wanton acts of an offender.
In the case at bar, appellant's unprovoked aggression snuffed the life of
Maureen Hultman, a girl in the prime of her youth. Hultman and her
companions were gunned down by appellant in cold-blood, for no
apparent reason. Appellant's vicious criminality led to the suffering of his
victims and their families. Considering our soaring crime rate, the
imposition of exemplary damages against appellant to deter others from
taking the lives of people without any sense of sin is proper. Moreover,
since the killing of Hultman was attended by treachery and pursuant to
Article 2229 of the new Civil Code, 195 we impose an award of Two Million
(P2,000,000.00) pesos as exemplary damages against appellant for the
death of Maureen Hultman.
We now review the award of One Million Pesos (P1,000,000.00) as moral,
moderate and exemplary damages to victim JUSSI LEINO.
From the record, it is incontrovertible that Leino likewise suffered
extensive injuries as a result of the shooting. His upper jaw bone was
shattered. He would need a bone transplant operation to restore it. His
tongue was also injured. He partially lost his sense of taste for his taste
buds were also affected. When he was discharged from the hospital, he
had difficulty in speaking and had to be fed through a tube running down
Page 44 of 59
his nose. He lost eight of his teeth. The roots of his teeth were cut off and
the raw nerves were exposed. But all these speak only of his physical
injuries and suffering. More devastating was the emotional strain that
distressed Leino. His parents were in Europe for a vacation at the time of
the shooting. Only a neighbor attended to him at the hospital. It took two
(2) days for his father to come and comfort by his bedside. Leino had
trouble sleeping in peace at night. The traumatic event woke him up in
the middle of the night. Black memories of the incident kept coming back
to
mind. 196 Understably, the ill-effects of the incident spilled over his
family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity.
He had to relocate his entire family to Europe where he felt they would
be safe. 197 Under the foregoing circumstances, we find that an award of
One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral
damages is justified and reasonable.
As in the case of Hultman, since the shooting of Leino was committed
with treachery and pursuant to Article 2229 of the New Civil
Code, 198 appellant is additionally adjudged liable for the payment to
Leino of Two Million (P2,000,000.00) pesos as exemplary damages.
We come now to the trial court's monetary award to compensate the
LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN
HULTMAN.
To be compensated for loss of earning capacity, it is not necessary that
the victim, at the time of injury or death, is gainfully employed.
Compensation of this nature is awarded not for loss of earnings but for
loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus
Company, 199 we awarded to the heirs of Cariaga a sum representing loss
of his earning capacity although he was still a medical student at the time
of injury. However, the award was not without basis for Cariaga was then
a fourth year medical student at a reputable school; his scholastic record,
which was presented at the trial, justified an assumption that he would
have been able to finish his course and pass the board in due time; and
a doctor, presented as witness for the appellee, testified as to the
amount of income Cariaga would have earned had he finished his
medical studies.
In the case at bar, the trial court awarded the amount, equivalent in
Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with
appellant that this amount is highly speculative and should be denied
considering that Leino had only earned a high school degree at the
International School, Manila, in 1989. He went back to Finland to serve
the military and has just arrived in Manila in February 1991 to pursue his
ambition to become a pilot. At the time of the shooting on July 13, 1991,
he has just enrolled at the Manila Aero Club to become a professional
pilot. He was thus only on his first year, first semester, in said school and
was practically, a mere high school graduate. Under the foregoing
circumstances, we find the records wanting with substantial evidence to
justify a reasonable assumption that Leino would have been able to finish
his studies at the Manila Aero Club and ultimately become a professional
pilot.
We now pass upon the propriety of the award of Thirteen Million Pesos
(P13,000,000.00) for loss of earning capacity of deceased MAUREEN
HULTMAN. We find that the award is not supported by the records.
In adjudging an award for Maureen's loss of earning capacity, the trial
court incorrectly used the monthly salary of a secretary working in
Sweden, computed at two thousand dollars ($2,000.00) a month, as per
the estimate given by Anders Hultman. Nowhere in the records does it
appear that, at the time of her death, Maureen had acquired the skills
needed for a secretarial job or that she intended to take a secretarial
course in preparation for such job in Sweden. Anders Hultman himself
testified that there was uncertainty as to Maureen's future career path,
thus:
ATTY. VINLUAN:
Q Mr. Witness, if Maureen would not been (sic) shot and she continued
her studies, what professional career would she (sic) like to pursue
considering her interests and inclinations?
WITNESS:
A That is very difficult to say. She has just turned 17 and our projection is
that, certainly she would have been an artist in the creative side. She
would have become an actress or a movie producer or probably she
would have been a college graduate.
ATTY. VINLUAN:
Q But if you would just say based on the salary of a secretary in Sweden,
how much would she have much earned?
A. Not less than Two Thousand Dollars a month. 200
Clearly, there is no factual basis for the award of thirteen million
(P13,000,000.00) pesos to the heirs of Maureen far loss of earning
capacity as a probable secretary in Sweden.
In any event, what was proved on record is that after graduating from
high school, Maureen took up a short personality development course at
the John Roberts Powers. Maureen was employed at the John Roberts
Powers at the time of her death. It was her first job. In fact, she had just
received her first salary, for which reason she went out with her friends
to celebrate on that fateful day. However, neither the nature of her work
nor her salary in said company was disclosed at the trial. Thus, to
compute the award for Maureen's loss of earning capacity, we are
constrained to use the minimum wage prevailing as of the date of her
death (October 17, 1991), i.e., one hundred eighteen pesos
(P118.00). 201 Allowing for reasonable and necessary expenses in the
amount of P19,800.00, her net income per annum would amount to
P26,859.17. 202 Hence, using the formula repeatedly adopted by this
Court: 203 (2/3 x [80 — age of victim at time of death]) x a reasonable
portion of the net income which would have been received by the heirs
as support, 204 we fix the award for loss of earning as capacity of
deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-
Two Pesos and Fifty-Seven Centavos (P564,042.57).
It also bears emphasis that in the computation of the award for loss of
earning capacity of the deceased, the life expectancy of the deceased's
heirs is not factored in. The rule is well-settled that the award of damages
for death is computed on the basis of the life expectancy of the deceased,
and not the beneficiary. 205
Lastly, appellant seeks a reduction of the award of attorney's fees in the
amount of Three Million Pesos (P3,000,000.00), claiming that the same
is exorbitant.
We disagree. The three (3) private complainants were represented by
the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They
agreed to pay the amount of One Million (P1,000,000.00) pesos each as
attorney's fees and for litigation expenses. The three criminal cases were
Page 45 of 59
consolidated. A continuous trial was conducted, with some hearings
having both morning and afternoon sessions. The trial lasted for almost
one and a half years. More than forty (40) witnesses testified during the
hearings. Several pleadings were prepared and filed. A total of sixty-eight
(68) documentary exhibits were presented by the prosecution. Incidents
related to the trial of the cases came up to this Court for review at least
twice during the pendency of the trial. 206 Given these circumstances and
the evident effort exerted by the private prosecutor throughout the trial,
the trial court's award of a total of Three Million (P3,000,000.00) pesos
as attorney's fees and litigation expenses appears just and reasonable.
VII
In his last assigned error, appellant urges that the hearings conducted on
the cases, where no less than forty-one (41) witnesses were presented
by the parties, 207 were merely hearings on the petition for bail
concerning the murder charge for the killing of Roland Chapman, and not
a trial on the merits of all three (3) cases. Appellant insists that after the
termination of the hearing, he still had the right to adduce evidence at
the trial proper. He claims he was denied due process when the trial
court considered all the cases submitted for decision after the defense
waived its right to present its surrebuttal evidence.
Appellant's position is untenable. This issue was resolved at the very first
hearing of the cases on August 9, 1991. The incident then pending was
appellant's petition for bail for the murder of Chapman. It will be
remembered that, initially, there was only one murder charge against
appellant since Maureen Hultman succumbed to death during the course
of the proceedings on October 17, 1991.
Thus, at the initial hearing on August 9, 1991, the incident for resolution
was appellant's petition for bail. The prosecution sought to present the
surviving victim, Jussi Leino, to testify on all three (3) charges to obviate
delay and inconvenience since all three (3) charges involved one
continuing incident. Appellant, through counsel, objected to the
testimony of Leino insofar as the two (2) frustrated murder charges (with
respect to the wounding of Leino and Hultman) were concerned. He
argued that since the pending incident was the petition for bail with
respect to the killing of Chapman, any testimony relative to the two (2)
other charges in which bail were recommended was irrelevant.
After arguments, the defense suggested that if the prosecution would
present Leino to testify on all three (3) charges, it should wait until after
accused's arraingment on August 14, 1991. 208 The prosecution agreed
on the condition that there shall be trial on the merits and, at the same
time, hearing on the petition for bail. Defense counsel agreed. 209
As agreed upon, accused was arraigned and the prosecution presented
Jussi Leino as its first witness to testify on all three (3) cases. No objection
was made by the defense. 210
Subsequent proceedings likewise disprove appellant's insistence that the
hearings conducted by the trial court were limited to the petition for
bail, viz:
1. The prosecution presented all their witnesses and documentary
evidence relative to the shooting incident, including evidence in support
of the claim for damages. These witnesses were extensively cross-
examined by the defense counsels. The defense never objected that
evidence on damages would be unnecessary if its intention was really to
limit presentation of evidence to appellant's petition for bail.
2. After the prosecution and the defense rested their cases, the trial court
issued an Order 211 directing the parties to submit their Memorandum,
after which "the main case as well as the petition for bail are respectively
submitted for Decision and Resolution." After receipt of this Order, the
defense counsel filed two (2) motions for extension of time to file the
defense Memorandum. In both Motions, the defense did not object to
the trial court's Order submitting for decision the main case and the
petition for bail. Neither did it move for a reconsideration of this Order
and notify the court that it still had witnesses to present.
3. In compliance with said Order, appellant's counsel, Atty. Rodolfo
Jimenez, filed a Memorandum and Supplemental Memorandum praying
for accused's acquittal. This is inconsistent with the defense's position
that the hearing conducted was only on the petition for bail. If the
defense insist that what was submitted for decision was only his petition
for bail, he would have only prayed that he be granted bail.
4. Upon receipt of the notice of promulgation of judgment from the trial
court, the defense did not interpose any objection to the intended
promulgation. In fact, the defense attended the promulgation of the
Decision and manifested that they were ready therefor.
All these clearly show that the merits of the cases and the petition for
bail were heard simultaneously and appellant acquiesced thereto.
Moreover, appellant's right to present additional evidence was not
abridged by the trial court. On the contrary, the records disclose that the
trial court afforded the defense fair opportunity to adduce its evidence.
It took the defense almost one and a half years to submit its evidence.
The defense presented more than twenty (20) witnesses and several
documentary evidence. It was only after the trial court rendered a
decision against appellant that he filed a motion for new
trial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time,
he alleged that the joint decision of the cases, both on the merits and on
the petition for bail, was irregular for he was not given a chance to
present further evidence to corroborate his alibi. We note that in his
motion for new trial, 213 appellant did not even identify his alleged
additional witnesses and the substance of their testimonies. Nor was it
shown that he could not have produced these evidence at the trial with
reasonable diligence. Appellant's motion was a patent ploy to delay the
decision on his cases. His motion was properly denied by the trial court.
IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the
Decision of the trial court, dated December 22, 1992, thus:
(1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the crime of Homicide for the
shooting of Roland John Chapman, and sentencing said accused to suffer
an indeterminate penalty of imprisonment of eight (8) years and one (1)
day of prision mayor as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal as maximum, and to pay the heirs
of the said deceased the following amounts: Fifty Thousand (P50,000.00)
pesos as indemnity for the victim's death; and, One Million
(P1,000,000.00) pesos as moral damages.
(2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by
treachery, for the shooting of Maureen Navarro Hultman, and sentencing
him to suffer imprisonment of reclusion perpetua, and to pay the heirs of
the said deceased the following amounts: Fifty Thousand (P50,000.00)
pesos as indemnity for her death; Two Million Three Hundred Fifty
Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos
(P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand
Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of
Page 46 of 59
earning capacity of said deceased; One Million Pesos (P1,000,000.00) as
moral damages; and Two Million (P2,000,000.00) pesos as exemplary
damages.
(3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee,
Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder,
qualified by treachery, for the shooting of Jussi Olavi Leino, and
sentencing him to suffer the indeterminate penalty of eight (8) years
of prision mayor as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal as maximum, and to pay the said offended
party the following amounts: (P30,000.00) pesos as Thirty Thousand
(P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen
Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos
(P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both
as actual damages; One Million (P1,000,000.00) pesos as moral damages;
and, Two Million (P2,000,000.00) pesos as exemplary damages.
(4) In all three cases, ordering said accused to pay each of the three (3)
offended parties the sum of One Million Pesos (P1,000,000.00; or a total
of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses
of litigation; and
(5) To pay the costs in all three (3) cases.
SO ORDERED.
G.R. Nos. 108280-83 November 16, 1995
ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and
JOSELITO TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN,
RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.
PUNO, J.:
The case before us occurred at a time of great political polarization in the
aftermath of the 1986 EDSA Revolution. This was the time when the
newly-installed government of President Corazon C. Aquino was being
openly challenged in rallies, demonstrations and other public fora by
"Marcos loyalists," supporters of deposed President Ferdinand E.
Marcos. Tension and animosity between the two (2) groups sometimes
broke into violence. On July 27, 1986, it resulted in the murder of
Stephen Salcedo, a known "Coryista."
From August to October 1986, several informations were filed in court
against eleven persons identified as Marcos loyalists charging them with
the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul
Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617
against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero;
Criminal Case No. 86-47790 against Richard de los Santos y Arambulo;
Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal
Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed
were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano
and Benjamin Nuega as well as Annie Ferrer charging them as
accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court,
Branch XLIX, Manila. All of the accused pleaded not guilty to the charge
and trial ensued accordingly. The prosecution presented twelve
witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato
Banculo, and the police officers who were at the Luneta at the time of
the incident. In support of their testimonies, the prosecution likewise
presented documentary evidence consisting of newspaper accounts of
the incident and various photographs taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled
to be held at the Luneta by the Marcos loyalists. Earlier, they applied for
a permit to hold the rally but their application was denied by the
authorities. Despite this setback, three thousand of them gathered at the
Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled
day. Led by Oliver Lozano and Benjamin Nuega, both members of the
Integrated Bar of the Philippines, the loyalists started an impromptu
singing contest, recited prayers and delivered speeches in between.
Colonel Edgar Dula Torres, then Deputy Superintendent of the Western
Police District, arrived and asked the leaders for their permit. No permit
could be produced. Colonel Dula Torres thereupon gave them ten
minutes to disperse. The loyalist leaders asked for thirty minutes but this
was refused. Atty. Lozano turned towards his group and said "Gulpihin
ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige
gulpihin ninyo!" The police then pushed the crowd, and used tear gas and
truncheons to disperse them. The loyalists scampered away but some of
them fought back and threw stones at the police. Eventually, the crowd
fled towards Maria Orosa Street and the situation later stabilized.1
At about 4:00 p.m., a small group of loyalists converged at the Chinese
Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular
movie starlet and supporter of President Marcos, jogging around the
fountain. They approached her and informed her of their dispersal and
Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory
hecklers!" Then she continued jogging around the fountain chanting
"Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos,
Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few
minutes later, Annie Ferrer was arrested by the police. Somebody then
shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and
Renato Banculo, a cigarette vendor, saw the loyalists attacking persons
in yellow, the color of the "Coryistas." Renato took off his yellow
shirt.2 He then saw a man wearing a yellow t-shirt being chased by a
group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the
yellow t-shirt was Salcedo and his pursuers appeared to be Marcos
loyalists. They caught Salcedo and boxed and kicked and mauled him.
Salcedo tried to extricate himself from the group but they again pounced
on him and pummelled him with fist blows and kicks hitting him on
various parts of his body. Banculo saw Ranulfo Sumilang, an electrician
at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers
so he could extricate Salcedo from them. But the maulers pursued
Salcedo unrelentingly, boxing him with stones in their fists. Somebody
gave Sumilang a loyalist tag which Sumilang showed to Salcedo's
attackers. They backed off for a while and Sumilang was able to tow
Salcedo away from them. But accused Raul Billosos emerged from behind
Sumilang as another man boxed Salcedo on the head. Accused Richard
de los Santos also boxed Salcedo twice on the head and kicked him even
as he was already fallen.3Salcedo tried to stand but accused Joel Tan
boxed him on the left side of his head and ear.4 Accused Nilo Pacadar
punched Salcedo on his nape, shouting: "Iyan, Cory Iyan.
Patayin!"5 Sumilang tried to pacify Pacadar but the latter lunged at the
victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and
kicked him as he once more fell. Banculo saw accused Romeo Sison trip
Page 47 of 59
Salcedo and kick him on the head, and when he tried to stand, Sison
repeatedly boxed him.6 Sumilang saw accused Gerry Neri approach the
victim but did not notice what he did.7
Salcedo somehow managed to get away from his attackers and wipe off
the blood from his face. He sat on some cement steps8 and then tried to
flee towards Roxas boulevard to the sanctuary of the Rizal Monument
but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in
the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa
akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?"9
The mauling resumed at the Rizal Monument and continued along Roxas
Boulevard until Salcedo collapsed and lost consciousness. Sumilang
flagged down a van and with the help of a traffic officer, brought Salcedo
to the Medical Center Manila but he was refused admission. So they took
him to the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained
various contusions, abrasions, lacerated wounds and skull fractures as
revealed in the following post-mortem findings:
Cyanosis, lips, and nailbeds.
Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right
side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0
x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna;
5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.
Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.
Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.
Hematoma, scalp; frontal region, both sides; left parietal region; right
temporal region; occipital region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial fossa;
right anterior cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and fluid.10
The mauling of Salcedo was witnessed by bystanders and several press
people, both local and foreign. The press took pictures and a video of the
event which became front-page news the following day, capturing
national and international attention. This prompted President Aquino to
order the Capital Regional Command and the Western Police District to
investigate the incident. A reward of ten thousand pesos (P10,000.00)
was put up by Brigadier General Alfredo Lim, then Police Chief, for
persons who could give information leading to the arrest of the
killers.11Several persons, including Ranulfo Sumilang and Renato
Banculo, cooperated with the police, and on the basis of their
identification, several persons, including the accused, were apprehended
and investigated.
For their defense, the principal accused denied their participation in the
mauling of the victim and offered their respective alibis. Accused Joselito
Tamayo testified that he was not in any of the photographs presented by
the prosecution12 because on July 27, 1986, he was in his house in
Quezon City.13 Gerry Neri claimed that he was at the Luneta Theater at
the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at
his office near the Luneta waiting for some pictures to be developed at
that time. 15 He claimed to be afflicted with hernia impairing his mobility;
he cannot run normally nor do things forcefully. 16 Richard de los Santos
admits he was at the Luneta at the time of the mauling but denies hitting
Salcedo. 17 He said that he merely watched the mauling which explains
why his face appeared in some of the photographs. 18 Unlike the other
accused, Nilo Pacadar admits that he is a Marcos loyalist and a member
of the Ako'y Pilipino Movement and that he attended the rally on that
fateful day. According to him, he saw Salcedo being mauled and like
Richard de los Santos, merely viewed the incident. 19 His face was in the
pictures because he shouted to the maulers to stop hitting
Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers
because he pitied Salcedo. The maulers however ignored him. 21
The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer
opted not to testify in their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo
Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo
guilty as principals in the crime of murder qualified by treachery and
sentenced them to 14 years 10 months and 20 days of reclusion
temporal as minimum to 20 years of reclusion temporal as maximum.
Annie Ferrer was likewise convicted as an accomplice. The court,
however, found that the prosecution failed to prove the guilt of the other
accused and thus acquitted Raul Billosos, Gerry Nery, Rolando
Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion
of the decision reads as follows:
WHEREFORE, judgement is hereby rendered in the aforementioned
cases as follows:
1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-
47322, the Court finds that the Prosecution failed to prove the guilt of
the two (2) Accused beyond reasonable doubt for the crime charged and
hereby acquits them of said charge;
2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the
Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty
beyond reasonable doubt, as principals for the crime of Murder, defined
in Article 248 of the Revised Penal Code, and, there being no other
mitigating or aggravating circumstances, hereby imposes on each of
them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10)
MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to
TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20)
YEARS of Reclusion Temporal, as Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-47790,
the Court finds the Accused Richard de los Santos guilty beyond
reasonable doubt as principal for the crime of Murder defined in Article
248 of the Revised Penal Code and, there being no other extenuating
circumstances, the Court hereby imposes on him an indeterminate
penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY
(20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal as Maximum;
4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the
Court finds the Accused guilty beyond reasonable doubt as principal, for
the crime of "Murder" defined in Article 248 of the Revised Penal Code
and hereby imposes on him an indeterminate penalty of from FOURTEEN
(14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion
Page 48 of 59
Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as
Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the
Court finds that the Prosecution failed to prove the guilt of the Accused
for the crime charged beyond reasonable doubt and hereby acquits him
of said charge;
6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007,
the Court finds that the Prosecution failed to prove the guilt of the
Accused beyond reasonable doubt for the crime charged and hereby
acquits them of said charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court
finds the said Accused guilty beyond reasonable doubt, as accomplice to
the crime of Murder under Article 18 in relation to Article 248 of the
Revised Penal Code and hereby imposes on her an indeterminate penalty
of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum
to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS
of Reclusion Temporal, as Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan,
Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and
severally, to the heirs of Stephen Salcedo the total amount of P74,000.00
as actual damages and the amount of P30,000.00 as moral and
exemplary damages, and one-half (1/2) of the costs of suit.
The period during which the Accused Nilo Pacadar, Romeo Sison, Joel
Tan, Richard de los Santos and Joselito Tamayo had been under
detention during the pendency of these cases shall be credited to them
provided that they agreed in writing to abide by and comply strictly with
the rules and regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release the
Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City
Jail unless they are being detained for another cause or charge.
The Petition for Bail of the Accused Rolando Fernandez has become moot
and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison
and Joselito Tamayo is denied for lack of merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega
are hereby cancelled. 22
On appeal, the Court of Appeals 23 on December 28, 1992, modified the
decision of the trial court by acquitting Annie Ferrer but increasing the
penalty of the rest of the accused, except for Joselito Tamayo,
to reclusion perpetua. The appellate court found them guilty of murder
qualified by abuse of superior strength, but convicted Joselito Tamayo of
homicide because the information against him did not allege the said
qualifying circumstance. The dispositive portion of the decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED
as follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan
y Mostero and Richard de los Santos are hereby found GUILTY beyond
reasonable doubt of Murder and are each hereby sentenced to suffer the
penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY
beyond reasonable doubt of the crime of Homicide with the generic
aggravating circumstance of abuse of superior strength and, as a
consequence, an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as
Maximum is hereby imposed upon him;
3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an
accomplice to the crime of Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been imposed
in the instant consolidated cases, the said cases are now hereby certified
to the Honorable Supreme Court for review. 24
Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules
of Court inasmuch as Joselito Tamayo was not sentenced to reclusion
perpetua. G.R. Nos. 114931-33 was certified to us for automatic review
of the decision of the Court of Appeals against the four accused-
appellants sentenced to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED
THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT
THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME
FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF
STEPHEN SALCEDO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING
CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO
SUMILANG.
III
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE
ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY
OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE
ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF
THE DECEASED.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.
V The records show that Sumilang was admonished several times by the
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE)
CAUSED IN A TUMULTUOUS AFFRAY. 25
In their additional brief, appellants contend that:
I verbal and non-verbal dimensions of a witness' testimony.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A
CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-
Page 49 of 59
SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE
TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT,
ALL CONTRARY TO THE RULES OF EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS
"D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE
NOT PROPERLY IDENTIFIED.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING
THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING
ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN
GROUNDS SURROUNDING THE INCIDENT. 26
Appellants mainly claim that the Court of Appeals erred in sustaining the
testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang
and Renato Banculo, because they are unreliable, doubtful and do not
deserve any credence. According to them, the testimonies of these two
witnesses are suspect because they surfaced only after a reward was
announced by General Lim. Renato Banculo even submitted three sworn
statements to the police geared at providing a new or improved version
of the incident. On the witness stand, he mistakenly identified a
detention prisoner in another case as accused Rolando
Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting
the trial court to reprimand him several times. 28
There is no proof that Banculo or Sumilang testified because of the
reward announced by General Lim, much less that both or either of them
ever received such reward from the government. On the contrary, the
evidence shows that Sumilang reported the incident to the police and
submitted his sworn statement immediately two hours after the mauling,
even before announcement of any reward. 29 He informed the police
that he would cooperate with them and identify Salcedo's assailants if he
saw them again. 30
The fact that Banculo executed three sworn statements does not make
them and his testimony incredible. The sworn statements were made to
identify more suspects who were apprehended during the investigation
of Salcedo's death. 31
trial court on the witness stand for being argumentative and
evasive. 32 This is not enough reason to reject Sumilang's testimony for
he did not exhibit this undesirable conduct all throughout his testimony.
On the whole, his testimony was correctly given credence by the trial
court despite his evasiveness at some instances. Except for compelling
reasons, we cannot disturb the way trial courts calibrate the credence of
witnesses considering their visual view of the demeanor of witnesses
when on the witness stand. As trial courts, they can best appreciate the
Banculo's mistake in identifying another person as one of the accused
does not make him an entirely untrustworthy witness. 33 It does not
make his whole testimony a falsity. An honest mistake is not inconsistent
with a truthful testimony. Perfect testimonies cannot be expected from
persons with imperfect senses. In the court's discretion, therefore, the
testimony of a witness can be believed as to some facts but disbelieved
with respect to the others. 34
We sustain the appellate and trial courts' findings that the witnesses'
testimonies corroborate each other on all important and relevant details
of the principal occurrence. Their positive identification of all petitioners
jibe with each other and their narration of the events are supported by
the medical and documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of
Investigation, testified that the victim had various wounds on his body
which could have been inflicted by pressure from more than one hard
object. 35 The contusions and abrasions found could have been caused
by punches, kicks and blows from rough stones. 36 The fatal injury of
intracranial hemorrhage was a result of fractures in Salcedo's skull which
may have been caused by contact with a hard and blunt object such as
fistblows, kicks and a blunt wooden instrument. 37
Appellants do not deny that Salcedo was mauled, kicked and punched.
Sumilang in fact testified that Salcedo was pummeled by his assailants
with stones in their hands. 38
Appellants also contend that although the appellate court correctly
disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary
weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-
13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista,
the police intelligence-operatives who witnessed the rally and
subsequent dispersal operation. Pat. Flores properly identified Exhibit
"O" as his sworn statement and in fact gave testimony corroborating the
contents thereof. 40 Besides, the Joint Affidavit merely reiterates what
the other prosecution witnesses testified to. Identification by Pat.
Bautista is a surplusage. If appellants wanted to impeach the said
affidavit, they should have placed Pat. Flores on the witness stand.
Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he
was being mauled at the Luneta — starting from a grassy portion to the
pavement at the Rizal Monument and along Roxas Boulevard, 41 — as he
was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo
and the mauling published in local newspapers and magazines such as
the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily
Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is
being questioned by appellants for lack of proper identification by the
person or persons who took the same.
The rule in this jurisdiction is that photographs, when presented in
evidence, must be identified by the photographer as to its production
and testified as to the circumstances under which they were
produced. 48 The value of this kind of evidence lies in its being a correct
representation or reproduction of the original, 49 and its admissibility is
determined by its accuracy in portraying the scene at the time of the
crime. 50 The photographer, however, is not the only witness who can
identify the pictures he has taken. 51 The correctness of the photograph
as a faithful representation of the object portrayed can be proved prima
facie, either by the testimony of the person who made it or by other
competent witnesses, after which the court can admit it subject to
impeachment as to its accuracy. 52Photographs, therefore, can be
identified by the photographer or by any other competent witness who
can testify to its exactness and accuracy. 53
Page 50 of 59
This court notes that when the prosecution offered the photographs as
part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr.
objected to their admissibility for lack of proper
identification. 54 However, when the accused presented their evidence,
Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry
Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not
in any of the pictures and therefore could not have participated in the
mauling of the victim. 55 The photographs were adopted by appellant
Joselito Tamayo and accused Gerry Neri as part of the defense exhibits.
And at this hearing, Atty. Dumayas represented all the other accused per
understanding with their respective counsels, including Atty. Lazaro, who
were absent. At subsequent hearings, the prosecution used the
photographs to cross-examine all the accused who took the witness
stand. 56 No objection was made by counsel for any of the accused, not
until Atty. Lazaro appeared at the third hearing and interposed a
continuing objection to their admissibility. 57
The objection of Atty. Lazaro to the admissibility of the photographs is
anchored on the fact that the person who took the same was not
presented to identify them. We rule that the use of these photographs
by some of the accused to show their alleged non-participation in the
crime is an admission of the exactness and accuracy thereof. That the
photographs are faithful representations of the mauling incident was
affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel
Tan identified themselves therein and gave reasons for their presence
thereat. 58
An analysis of the photographs vis-a-vis the accused's testimonies reveal
that only three of the appellants, namely, Richard de los Santos, Nilo
Pacadar and Joel Tan could be readily seen in various belligerent poses
lunging or hovering behind or over the victim. 59 Appellant Romeo Sison
appears only once and he, although afflicted with hernia is shown merely
running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the
pictures. The absence of the two appellants in the photographs does not
exculpate them. The photographs did not capture the entire sequence of
the killing of Salcedo but only segments thereof. While the pictures did
not record Sison and Tamayo hitting Salcedo, they were unequivocally
identified by Sumilang and
Banculo61Appellants' denials and alibis cannot overcome their eyeball
identification.
Appellants claim that the lower courts erred in finding the existence of
conspiracy among the principal accused and in convicting them of
murder qualified by abuse of superior strength, not death in tumultuous
affray.
Death in a tumultuous affray is defined in Article 251 of the Revised Penal
code as follows:
Art. 251. Death caused in a tumultuous affray. — When, while several
persons, not composing groups organized for the common purpose of
assaulting and attacking each other reciprocally, quarrel and assault each
other in a confused and tumultuous manner, and in the course of the
affray someone is killed, and it cannot be ascertained who actually killed
the deceased, but the person or persons who inflicted serious physical
injuries can be identified, such person or persons shall be punished
by prison mayor.
If it cannot be determined who inflicted the serious physical injuries on
the deceased, the penalty ofprision correccional in its medium and
maximum periods shall be imposed upon all those who shall have used
violence upon the person of the victim.
For this article to apply, it must be established that: (1) there be several
persons; (2) that they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally; (3) these
several persons quarrelled and assaulted one another in a confused and
tumultuous manner; (4) someone was killed in the course of the affray;
(5) it cannot be ascertained who actually killed the deceased; and (6) that
the person or persons who inflicted serious physical injuries or who used
violence can be identified.62
A tumultuous affray takes place when a quarrel occurs between several
persons and they engage in a confused and tumultuous affray, in the
course of which some person is killed or wounded and the author thereof
cannot be ascertained.63
The quarrel in the instant case, if it can be called a quarrel, was between
one distinct group and one individual. Confusion may have occurred
because of the police dispersal of the rallyists, but this confusion
subsided eventually after the loyalists fled to Maria Orosa Street. It was
only a while later after said dispersal that one distinct group identified as
loyalists picked on one defenseless individual and attacked him
repeatedly, taking turns in inflicting punches, kicks and blows on him.
There was no confusion and tumultuous quarrel or affray, nor was there
a reciprocal aggression at this stage of the incident.64
As the lower courts found, the victim's assailants were numerous by as
much as fifty in number65 and were armed with stones with which they
hit the victim. They took advantage of their superior strength and
excessive force and frustrated any attempt by Salcedo to escape and free
himself. They followed Salcedo from the Chinese Garden to the Rizal
Monument several meters away and hit him mercilessly even when he
was already fallen on the ground. There was a time when Salcedo was
able to get up, prop himself against the pavement and wipe off the blood
from his face. But his attackers continued to pursue him relentlessly.
Salcedo could not defend himself nor could he find means to defend
himself. Sumilang tried to save him from his assailants but they continued
beating him, hitting Sumilang in the process. Salcedo pleaded for mercy
but they ignored his pleas until he finally lost consciousness. The
deliberate and prolonged use of superior strength on a defenseless
victim qualifies the killing to murder.
Treachery as a qualifying circumstance cannot be appreciated in the
instant case. There is no proof that the attack on Salcedo was deliberately
and consciously chosen to ensure the assailants' safety from any defense
the victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was
wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign
against the rallyists, taunting them into mauling him. As the appellate
court well found, Salcedo had the opportunity to sense the temper of the
rallyists and run away from them but he, unfortunately, was overtaken
by them. The essence of treachery is the sudden and unexpected attack
without the slightest provocation on the part of the person being
attacked. 66
The qualifying circumstance of evident premeditation was alleged in the
information against Joselito Tamayo. Evident premeditation cannot be
appreciated in this case because the attack against Salcedo was sudden
and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.
We find however the existence of a conspiracy among appellants. At the
time they were committing the crime, their actions impliedly showed a
unity of purpose among them, a concerted effort to bring about the
death of Salcedo. Where a conspiracy existed and is proved, a showing
Page 51 of 59
as to who among the conspirators inflicted the fatal wound is not
required to sustain a conviction. 67 Each of the conspirators is liable for
all acts of the others regardless of the intent and character of their
participation, because the act of one is the act of all. 68
The trial court awarded the heirs of Salcedo P74,000.00 as actual
damages, P30,000.00 as moral and exemplary damages, and one half of
the costs of the suit. At the time he died on July 27, 1986, Salcedo was
twenty three years old and was set to leave on August 4, 1986 for
employment in Saudi Arabia. 69 The reckless disregard for such a young
person's life and the anguish wrought on his widow and three small
children, 70 warrant an increase in moral damages from P30,000.00 to
P100,000.00. The indemnity of P50,000.00 must also be awarded for the
death of the victim.71
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and
modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard
de los Santos are found GUILTY beyond reasonable doubt of Murder
without any aggravating or mitigating circumstance and are each hereby
sentenced to suffer the penalty of reclusion perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond
reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, he is
sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayor as minimum to TWENTY (20) YEARS of reclusion temporal as
maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally
the heirs of Stephen Salcedo the following amounts:
(a) P74,000.00 as actual damages;
(b) P100,000.00 as moral damages; and
(c) P50,000.00 as indemnity for the death of the victim.
Costs against accused-appellants.
SO ORDERED.
G.R. No. 170723 March 3, 2008
GLORIA PILAR S. AGUIRRE, petitioner,
vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-
OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B.
PASCUAL, respondents.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Rules of
Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre)
seeks the reversal of the 21 July 2005 Decision2 and 5 December 2005
Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 88370,
entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of Justice,
Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual,
Pedro B. Aguirre and John and Jane Does."
The Court of Appeals found no grave abuse of discretion on the part of
the Secretary of the Department of Justice (DOJ) when the latter issued
the twin resolutions dated 11 February 20044 and 12 November
2004,5 respectively, which in turn affirmed the 8 January 2003
Resolution6 of the Office of the City Prosecutor (OCP) of Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City recommended
the dismissal of the criminal complaint, docketed as I.S. No. 02-12466,
for violation of Articles 172 (Falsification by Private Individuals and Use
of Falsified Documents) and 262 (Mutilation), both of the Revised Penal
Code, in relation to Republic Act No. 7610, otherwise known as "Child
Abuse, Exploitation and Discrimination Act," for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre
against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S.
Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa
B. Pascual (Dr. Pascual) and several John/Jane Does for falsification,
mutilation and child abuse.
The antecedents of the present petition are:
Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa,
a child caring agency run by the Good Shepherd Sisters and licensed by
the Department of Social Work and Development (DSWD). Sometime in
1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre
(Lourdes Aguirre); and their four daughters, who included petitioner
Gloria Aguirre and respondent Olondriz, came to know Larry, who was
then just over a year old. The Aguirres would have Larry spend a few days
at their home and then return him to the orphanage thereafter. In June
1980, Larry, then two years and nine months of age, formally became the
ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by
virtue of an Affidavit of Consent to Legal Guardianship executed in their
favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary
Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was
legalized when the Regional Trial Court (RTC), Branch 3 of Balanga,
Bataan, duly appointed them as joint co-guardians over the person and
property of Larry.
As Larry was growing up, the Aguirre spouses and their children noticed
that his developmental milestones were remarkably delayed. His
cognitive and physical growth did not appear normal in that "at age 3 to
4 years, Larry could only crawl on his tummy like a frog x x x;"8 he did not
utter his first word until he was three years of age; did not speak in
sentences until his sixth year; and only learned to stand up and walk after
he turned five years old. At age six, the Aguirre spouses first enrolled
Larry at the Colegio de San Agustin, Dasmariñas Village, but the child
experienced significant learning difficulties there. In 1989, at age eleven,
Larry was taken to specialists for neurological and psychological
evaluations. The psychological evaluation9 done on Larry revealed the
latter to be suffering from a mild mental deficiency.10 Consequent
thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney,
an educational institution for special children.
In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was
approached concerning the intention to have Larry, then 24 years of age,
vasectomized. Prior to performing the procedure on the intended
patient, respondent Dr. Agatep required that Larry be evaluated by a
psychiatrist in order to confirm and validate whether or not the former
could validly give his consent to the medical procedure on account of his
mental deficiency.
Page 52 of 59
In view of the required psychiatric clearance, Larry was brought to
respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric
report dated 21 January 2002, respondent Dr. Pascual made the
following recommendation:
[T]he responsibility of decision making may be given to his parent or
guardian.11
the full text of which reads –
PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John
[Marie Vianney], was referred for psychiatric evaluation to determine
competency to give consent for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal history is not
known to the adoptive family except that abortion was attempted.
Developmental milestones were noted to be delayed. He started to walk
and speak in single word at around age 5. He was enrolled in Colegio de
San Agustin at age 6 where he showed significant learning difficulties that
he had to repeat 1st and 4th grades. A consult was done in 1989 when he
was 11 years old. Neurological findings and EEG results were not normal
and he was given Tecretol and Encephabol by his neurologist.
Psychological evaluation revealed mild to moderate mental retardation,
special education training was advised and thus, he was transferred to
St. John Marie Vianney. He finished his elementary and secondary
education in the said school. He was later enrolled in a vocational course
at Don Bosco which he was unable to continue. There has been no
reported behavioral problems in school and he gets along relatively well
with his teachers and some of his classmates.
Larry grew up with a very supportive adoptive family. He is the youngest
in the family of four sisters. Currently, his adoptive parents are already
old and have medical problem and thus, they could no longer monitor
and take care of him like before. His adoptive mother has Bipolar Mood
Disorder and used to physically maltreat him. A year ago, he had an
episode of dizziness, vomiting and headaches after he was hit by his
adoptive mother. Consult was done in Makati Medical Center and several
tests were done, results of which were consistent with his developmental
problem. There was no evidence of acute insults. The family
subsequently decided that he should stay with one of his sisters to avoid
similar incident and the possibility that he would retaliate although he
has never hurt anybody. There has been no episode of violent outburst
or aggressive behavior. He would often keep to himself when sad, angry
or frustrated.
He is currently employed in the company of his sister and given
assignment to do some photocopying, usually in the mornings. He enjoys
playing billiards and basketball with his nephews and, he spends most of
his leisure time watching TV and listening to music. He could perform
activities of daily living without assistance except that he still needs
supervision in taking a bath. He cannot prepare his own meal and never
allowed to go out and run errands alone. He does not have friends and it
is only his adoptive family whom he has significant relationships. He
claims that he once had a girlfriend when he was in high school who was
 more like a best friend to him. He never had sexual relations. He has
learned to smoke and drink alcohol few years ago through his cousins
and the drivers. There is no history of abuse of alcohol or any prohibited
substances.
MEDICAL STATUS EXAMINATION
The applicant was appropriately dressed. He was cooperative and he had
intermittent eye contact. Speech was spontaneous, soft, and relevant.
He responded to questions in single words or simple sentences. He was
anxious specially at the start of the interview, with full affect appropriate
to mood and thought content. There was no apparent thought or
perceptual disturbance. No suicidal/homicidal thoughts elicited. He was
oriented to time, place and person. He has intact remote and recent
memory. He could do simple calculation. He could write his name and
read simple words. His human figure was comparable to a 7-8 year old.
He demonstrated fair judgment and poor insight. He had fair impulse
control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on
August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed
mild to moderate mental deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right deep parietal
subcortical malacia. No localized mass lesion in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x volume loss,
encephalomalacia, gliosis and ulegyria consistent with sequela of
postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral
ventricles associated thinned posterior half of the corpus callosum.
ASSESSMENT AND RECOMMENDATION
Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis IV None at present
Axis V Current GAF = 50-60
Larry's mental deficiency could be associated with possible perinatal
insults, which is consistent with the neuroimaging findings. Mental
retardation associated with neurological problems usually has poorer
prognosis. Larry is very much dependent on his family for his needs,
adaptive functioning, direction and in making major life decisions. At his
capacity, he may never understand the nature, the foreseeable risks and
benefits, and consequences of the procedure (vasectomy) that his family
wants for his protection. Thus, the responsibility of decision making may
be given to his parent or guardian.
Marissa B. Pascual, M.D.
Psychiatrist12
Page 53 of 59
Considering the above recommendation, respondent Pedro Aguirre's
written consent was deemed sufficient in order to proceed with the
conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr.
Agatep performed a bilateral vasectomy on Larry.
On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's
eldest child, instituted a criminal complaint for the violation of the
Revised Penal Code, particularly Articles 172 and 262, both in relation to
Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr.
Agatep, Dr. Pascual and several John/Jane Does before the Office of the
City Prosecutor of Quezon City.
The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the
following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners
specializing in urology and psychiatry respectively; while respondent
Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister,
and the victim Laureano "Larry" Aguirre xxx is my common law brother.
JOHN and JANE DOES were the persons who, acting upon the apparent
instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B.
Aguirre, actually scouted, prospected, facilitated, solicited and/or
procured the medical services of respondents Dra. Pascual and Dr.
Agatep vis-à-vis the intended mutilation via bilateral vasectomy of my
common law brother Larry Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa of the
Good Shepherd Sisters was furnished a copy of respondent Dra. Pascual's
Psychiatry Report dated 21 January 2004 by the "DSWD," in which my
common law brother "Larry" was falsely and maliciously declared
incompetent and incapable of purportedly giving his own consent to the
MUTILATION VIA BILATERAL VASECTOMY intended to be performed on
him by all the respondents.
xxxx
6. Based on the foregoing charade and false pretenses invariably
committed by all of the respondents in conspiracy with each other, on 31
January 2002, my common law brother Larry Aguirre, although of legal
age but conspiratorially caused to be declared by respondents to be
"mentally deficient" and incompetent to give consent to his BILATERAL
VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously
and/or criminally placed thereafter under surgery for MUTILATION VIA
"BILATERAL VASECTOMY" x x x, EVEN WITHOUT ANY AUTHORIZATION
ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry
Aguirre himself.
In addition to the above, the complaint included therein an allegation
that –
v. x x x without a PRIOR medical examination, professional interview of
nor verification and consultation with my mother, Lourdes Sabino-
Aguirre, respondent Dra. Pascual baselessly, fraudulently and with
obvious intent to defame and malign her reputation and honor, and
worse, that of our Sabido family, falsely concluded and diagnosed, via her
falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre
purportedly suffers from "BIPOLAR MOOD DISORDER" x x x.
To answer petitioner Gloria Aguirre's accusations against them,
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual
submitted their respective Counter-Affidavits.
In her defense,14 respondent Olondriz denied that she "prospected,
scouted, facilitated, solicited and/or procured any false statement,
mutilated or abused" her common-law brother, Larry Aguirre. Further,
she countered that:
3. x x x While I am aware and admit that Larry went through a vasectomy
procedure, there is nothing in the Complaint which explains how the
vasectomy amounts to a mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the alleged
mutilation.
6. Neither did I procure or solicit the services of the physician who
performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro
Aguirre, Larry's guardian, who obtained his services. I merely acted upon
his instructions and accompanied my brother to the physician,
respondents Dra. Marissa B. Pascual x x x.
xxxx
10. Neither does the Complaint explain in what manner the Complainant
is authorized or has any standing to declare that Larry's consent was not
obtained. Complainant is not the guardian or relative of Larry. While she
argues that Larry's consent should have been obtained the Complaint
does not dispute the psychiatrist's findings about Larry's inability to give
consent.
xxxx
13. x x x the Complaint does not even state what alleged participation
was falsified or the portion of the psychiatric report that allegedly states
that someone participated when in fact that person did not so
participate.
xxxx
15. Again, I had no participation in the preparation of the report of Dr.
Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is mentally
deficient or incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was explained
to him (Larry) by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the belief that my
father continues to be the legal guardian of Larry. I know of no one else
who asserts to be his legal guardian x x x.15
Page 54 of 59
Alleging the same statement of facts and defenses, respondent Pedro
Aguirre argues against his complicity in the crime of mutilation as
charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the alleged
mutilation.16
Nevertheless, he maintains that the vasectomy performed on Larry does
not in any way amount to mutilation, as the latter's reproductive organ
is still completely intact.17 In any case, respondent Pedro Aguirre explains
that the procedure performed is reversible through another procedure
called Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a procedure called
Vasovasostomy. I can also state with confidence that the procedure
enables men who have undergone a vasectomy to sire a child. Hence,
no permanent damage was caused by the procedure.
Respondent Pedro Aguirre challenges the charge of falsification in the
complaint, to wit:
14. x x x I did not make it appear that any person participated in any act
or proceeding when that person did not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report of Dra.
Pascual. She arrived at her report independently, using her own
professional judgment x x x.
xxxx
31. What I cannot understand about Petita's Complaint is how Larry is
argued to be legally a child under the definition of one law but
nonetheless and simultaneously argued to be capacitated to give his
consent as fully as an adult.18
Respondent Pedro Aguirre further clarifies that co-guardianship over
Larry had been granted to himself and his wife, Lourdes Aguirre, way
back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga,
Bataan. Respondent Pedro Aguirre contends that being one of the legal
guardians, consequently, parental authority over Larry is vested in him.
But assuming for the sake of argument that Larry does have the capacity
to make the decision concerning his vasectomy, respondent Pedro
Aguirre argues that petitioner Gloria Aguirre has no legal personality to
institute the subject criminal complaint, for only Larry would have the
right to do so.
Just as the two preceding respondents did, respondent Dr. Agatep also
disputed the allegations of facts stated in the Complaint. Adopting the
allegations of his co-respondents insofar as they were material to the
charges against him, he vehemently denied failing to inform Larry of the
intended procedure. In his counter-statement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x wherein I
painstakingly explained what vasectomy is and the consequences
thereof; but finding signs of mental deficiency, x x x I advised his relatives
and his nurse who accompanied him to have Larry examined by a
psychiatrist who could properly determine whether or not Larry x x x can
really give his consent, thus I required them to secure first a psychiatric
evaluation and clearance prior to the contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric report
prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual found
Larry to suffer from "mental retardation, mild to moderate type" and
further stated that "at his capacity, he may never understand the nature,
the foreseeable risks and benefits and consequences of the procedure
(vasectomy) x x x, thus the responsibility of decision making may be given
to his parent or guardian x x x."
(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro
Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre
gave his consent to vasectomize Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was performed
with utmost care and diligence.19
In defense against the charge of falsification and mutilation, respondent
Dr. Agatep argued that subject complaint should be dismissed for the
following reasons:
1. The complainant has no legal personality to file this case. As mentioned
above, she is only a common law sister of Larry who has a legal guardian
in the person of Pedro Aguirre, one of the herein respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on the condition
of complainant's mother, Lourdes Aguirre, her reputation, and miserably
fails to implicate the degree of participation of herein respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not apply to me
since it clearly gives reference to co-respondent, Dr. Marissa Pascual's
Psychiatry Report, dated January 21, 2002, in relation with her field of
profession, an expert opinion. I do not have any participation in the
preparation of said report, x x x neither did I utilized (sic) the same in any
proceedings to the damage to another. x x x I also deny using a falsified
document x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to castration
and what is touched in vasectomy is not considered an organ in the
context of law and medicine, it is quite remote from the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying
the applicability of said law. It merely avers that Laureano "Larry" Aguirre
is a child, and alleges his father, Pedro Aguirre, has parental authority
over him x x x.20
Similarly, respondent Dr. Pascual denied the criminal charges of
falsification and mutilation imputed to her. She stands by the contents of
the assailed Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirre's mental status was based on my own
personal observations, his responses during my interview of him, the
results of the two (2) psychological tests conducted by clinical
psychologists, the results of laboratory tests, including a CT Scan and
MRI, and his personal and family history which I obtained from his sister,
Michelina Aguirre-Olondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not
a statement of my opinion of Mrs. Aguirre's mental status, x x x. Rather,
it is part of the patient's personal and family history as conveyed to me
by Mrs. Aguirre-Olondriz.
Page 55 of 59
6. x x x An expression of my opinion, especially of an expert opinion,
cannot give rise to a charge for falsification. A contrary opinion by
another expert only means that the experts differ, and does not
necessarily reflect on the truth or falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I never did x
x x.
8. I had no participation in the surgery performed on Larry Aguirre except
to render an opinion on his capacity to give informed consent to the
vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that
complainants are not the proper persons to subscribe to the same as
they are not the offended party, peace officer or other public officer
charged with the enforcement of the law violated x x x.21
The Assistant City Prosecutor held that the circumstances attendant to
the case did not amount to the crime of falsification. He held that –
[T]he claim of the complainant that the Psychiatric Report was falsified,
because consent was not given by Larry Aguirre to the vasectomy and/or
he was not consulted on said operation does not constitute falsification.
It would have been different if it was stated in the report that consent
was obtained from Larry Aguirre or that it was written therein that he
was consulted on the vasectomy, because that would mean that it was
made to appear in the report that Larry Aguirre participated in the act or
proceeding by giving his consent or was consulted on the matter when
in truth and in fact, he did not participate. Or if not, the entry would have
been an untruthful statement. But that is not the case. Precisely (sic) the
report was made to determine whether Larry Aguirre could give his
consent to his intended vasectomy. Be that as it may, the matter of
Larry's consent having obtained or not may nor be an issue after all,
because complainant's (sic) herself alleged that Larry's mental condition
is that of a child, who can not give consent. Based on the foregoing
consideration, no falsification can be established under the
circumstances.22
Even the statement in the Psychiatric Report of respondent Dr. Pascual
that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered
falsification since –
The report did not state that Lourdes Aguirre was in fact personally
interviewed by respondent Dr. Pascual and that the latter concluded that
Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted
other sources of information with respect to the condition of Lourdes
Aguirre, in the same manner that the fact that Lourdes Aguirre was
physically abusing Larry Aguirre was also not of Dra. Pascual personal
knowledge. But the fact that Dra. Pascual cited finding, which is not of
her own personal knowledge in her report does not mean that she
committed falsification in the process. Her sources may be wrong and
may affect the veracity of her report, but for as long as she has not
alleged therein that she personally diagnosed Lourdes Aguirre, which
allegation would not then be true, she cannot be charged of falsification.
Therefore, it goes without saying that if the author of the report is not
guilty, then with more reason the other respondents are not liable.23
Respecting the charge of mutilation, the Assistant City Prosecutor also
held that the facts alleged did not amount to the crime of mutilation as
defined and penalized under Article 262 of the Revised Penal Code, i.e.,
"[t]he vasectomy operation did not in any way deprived (sic) Larry of his
reproductive organ, which is still very much part of his physical self." He
ratiocinated that:
While the operation renders him the inability (sic) to procreate, the
operation is reversible and therefore, cannot be the permanent damage
contemplated under Article 262 of the Revised Penal Code.24
The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003,
found no probable cause to hold respondents Pedro Aguirre, Olondriz,
Dr. Agatep and Dr. Pascual liable for the complaint of falsification and
mutilation, more specifically, the violation of Articles 172 and 262 of the
Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the
Assistant City Prosecutor recommended the dismissal of petitioner Gloria
Aguirre's complaint for insufficiency of evidence. The dispositive portion
of the resolution reads:
WHEREFORE, it is recommended that the above-entitled case be
dismissed for insufficiency of evidence.27
On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing
resolution to the Secretary of the DOJ by means of a Petition for
Review.28
In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito
R. Zuño, for the Secretary of the DOJ, dismissed the petition. In resolving
said appeal, the Chief State Prosecutor held that:
Under Section 12, in relation to Section 7, of Department Circular No. 70
dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss
outright the petition if there is no showing of any reversible error in the
questioned resolution or finds the same to be patently without merit.
We carefully examined the petition and its attachments and found no
error that would justify a reversal of the assailed resolution which is in
accord with the law and evidenced (sic) on the matter.29
Petitioner Gloria Aguirre's Motion for Reconsideration was likewise
denied with finality by the DOJ in another Resolution dated 12 November
2004.
Resolute in her belief, petitioner Gloria Aguirre went to the Court of
Appeals by means of a Petition for Certiorari, Prohibition
and Mandamus under Rule 65 of the Rules of Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision
dismissing petitioner Gloria Aguirre's recourse for lack of merit.
The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present petition is hereby
DENIED DUE COURSE and accordingly DISMISSED for lack of merit.
Consequently, the assailed Resolutions dated February 11, 2004 and
November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are
hereby AFFIRMED.30
Petitioner Gloria Aguirre's motion for reconsideration proved futile as it
was denied by the appellate court in a Resolution dated 5 December
2005.
Hence, the present petition filed under Rule 45 of the Rules of Court, as
amended, premised on the following arguments:
I.
Page 56 of 59
THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE
ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE
INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF
LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS
PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE
HENCE NOT AMOUNTING TO MUTILATION, X X X; AND
xxxx
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND
REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE
INDICTMENT OF THE PRIVATE RESPONDENTS FOR MUTILATION AND
FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE
CAUSE THEREFOR X X X.31
The foregoing issues notwithstanding, the more proper issue for this
Court's consideration is, given the facts of the case, whether or not the
Court of Appeals erred in ruling that the DOJ did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction when the latter
affirmed the public prosecutor's finding of lack of probable cause for
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand
trial for the criminal complaints of falsification and mutilation in relation
to Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction, the Court of Appeals
explained that:
Evidently, the controversy lies in the permanency of sterilization as a
result of a vasectomy operation, and the chances of restoring fertility
with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy performed on
Larry does not constitute mutilation even if intentionally and purposely
done to prevent him from siring a child.
xxxx
Sterilization is to be distinguished from castration: in the latter act the
reproductive capacity is permanently removed or damaged.32
It then concluded that:
The matter of legal liability, other than criminal, which private
respondents may have incurred for the alleged absence of a valid
consent to the vasectomy performed on Larry, is certainly beyond the
province of this certiorari petition. Out task is confined to the issue of
whether or not the Secretary of Justice and the Office of the City
Prosecutor of Quezon City committed grave abuse of discretion in their
determining the existence or absence of probable cause for filing criminal
cases for falsification and mutilation under Articles 172 (2) and 262 of
the Revised Penal Code.33
Petitioner Gloria Aguirre, however, contends that the Court of Appeals
and the DOJ failed to appreciate several important facts: 1) that bilateral
vasectomy conducted on petitioner's brother, Larry Aguirre, was
admitted34; 2) that the procedure caused the perpetual destruction of
Larry's reproductive organs of generation or conception;35 3) that the
bilateral vasectomy was intentional and deliberate to deprive Larry
forever of his reproductive organ and his capacity to procreate; and 4)
that respondents, "in conspiracy with one another, made not only one
but two (2) untruthful statements, and not mere inaccuracies when they
made it appear in the psychiatry report"36 that a) Larry's consent was
obtained or at the very least that the latter was informed of the intended
vasectomy; and b) that Lourdes Aguirre was likewise interviewed and
evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in
any way state that she, instead of respondent Pedro Aguirre, has
guardianship over the person of Larry. She only insists that respondents
should have obtained Larry's consent prior to the conduct of the bilateral
vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public
respondent DOJ, argues that "the conduct of preliminary investigation to
determine the existence of probable cause for the purpose of filing (an)
information is the function of the public prosecutor."37 More
importantly, "the element[s] of castration or mutilation of an organ
necessary for generation is completely absent as he was not deprived of
any organ necessary for reproduction, much less the destruction of such
organ."38
Likewise, in support of the decision of the Court of Appeals, respondents
Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria
Aguirre has no standing to file the complaint, as she has not shown any
injury to her person or asserted any relationship with Larry other than
being his "common law sister"; further, that she cannot prosecute the
present case, as she has not been authorized by law to file said complaint,
not being the offended party, a peace officer or a public officer charged
with the enforcement of the law. Accordingly, respondents Pedro Aguirre
and Olondriz posit that they, together with the other respondents Dr.
Agatep and Dr. Pascual, may not be charged with, prosecuted for and
ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy
conducted on Larry does not involve castration or amputation of an
organ necessary for reproduction as the twin elements of the crime of
mutilation x x x are absent"39; and 2) "falsification x x x since the acts
allegedly constituting falsification involve matters of medical opinion and
not matters of fact,"40 and that petitioner Gloria Aguirre failed to prove
damage to herself or to any other person.
Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not
mutilation. He elucidates that vasectomy is merely the "excision of the
vas deferens, the duct in testis which transport semen"41; that it is the
penis and the testis that make up the male reproductive organ and not
the vas deferens; and additionally argues that for the crime of mutilation
to be accomplished, Article 262 of the Revised Penal Code necessitates
that there be intentional total or partial deprivation of some essential
organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic
urethra not being organs, respondent Dr. Agatep concludes, therefore,
that vasectomy does not correspond to mutilation.
Anent the charge of falsification of a private document, respondent Dr.
Agatep asseverates that he never took part in disclosing any information,
data or facts as contained in the contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed Psychiatry
Report was the result of her independent exercise of professional
judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be
incapable of giving consent, based on interviews made by the psychiatrist
on Larry Aguirre and persons who interacted with him."42And supposing
that said report is flawed, it is, at most, an erroneous medical diagnosis.
The petition has no merit.
Page 57 of 59
Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted.43 The term does not
mean "actual and positive cause" nor does it import absolute
certainty.44 It is merely based on opinion and reasonable belief;45 that is,
the belief that the act or omission complained of constitutes the offense
charged. A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.46
The executive department of the government is accountable for the
prosecution of crimes, its principal obligation being the faithful execution
of the laws of the land. A necessary component of the power to execute
the laws is the right to prosecute their violators,47 the responsibility of
which is thrust upon the DOJ. Hence, the determination of whether or
not probable cause exists to warrant the prosecution in court of an
accused is consigned and entrusted to the DOJ. And by the nature of his
office, a public prosecutor is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to
prop up the averments thereof, or that the evidence at hand points to a
different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of
discretion, the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best
appreciated by (public) prosecutors.48 And this Court has consistently
adhered to the policy of non-interference in the conduct of preliminary
investigations, and to leave to the investigating prosecutor sufficient
latitude of discretion in the determination of what constitutes sufficient
evidence as will establish probable cause for the filing of an information
against the supposed offender.49
But this is not to discount the possibility of the commission of abuses on
the part of the prosecutor. It is entirely possible that the investigating
prosecutor may erroneously exercise the discretion lodged in him by law.
This, however, does not render his act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any
showing of grave abuse of discretion amounting to excess of
jurisdiction.50
Prescinding from the above, the court's duty in an appropriate case,
therefore, is confined to a determination of whether the assailed
executive determination of probable cause was done without or in
excess of jurisdiction resulting from a grave abuse of discretion. For
courts of law to grant the extraordinary writ of certiorari, so as to justify
the reversal of the finding of whether or not there exists probable cause
to file an information, the one seeking the writ must be able to establish
that the investigating prosecutor exercised his power in an arbitrary and
despotic manner by reason of passion or personal hostility, and it must
be patent and gross as would amount to an evasion or to a unilateral
refusal to perform the duty enjoined or to act in contemplation of law.
Grave abuse of discretion is not enough.51 Excess of jurisdiction signifies
that he had jurisdiction over the case but has transcended the same or
acted without authority.52
Applying the foregoing disquisition to the present petition, the reasons
of the Assistant City Prosecutor in dismissing the criminal complaints for
falsification and mutilation, as affirmed by the DOJ, is determinative of
whether or not he committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
In ruling the way he did – that no probable cause for falsification and
mutilation exists - the Assistant City Prosecutor deliberated on the factual
and legal milieu of the case. He found that there was no sufficient
evidence to establish a prima facie case for the crimes complained of as
defined and punished under Articles 172, paragraph 2, and 262 of the
Revised Penal Code in relation to Republic Act No. 7610, respectively.
Concerning the crime of falsification of a private document, the Assistant
City Prosecutor reasoned that the circumstances attendant to the case
did not amount to the crime complained of, that is, the lack of consent
by Larry Aguirre before he was vasectomized; or the fact that the latter
was not consulted. The lack of the two preceding attendant facts do not
in any way amount to falsification, absent the contention that it was
made to appear in the assailed report that said consent was obtained.
That would have been an untruthful statement. Neither does the fact
that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood
Disorder by the same token amount to falsification because said report
does not put forward that such finding arose after an examination of the
concerned patient. Apropos the charge of mutilation, he reasoned that
though the vasectomy rendered Larry unable to procreate, it was not the
permanent damage contemplated under the pertinent provision of the
penal code.
We agree. Grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the DOJ and the Assistant City Prosecutor was
not shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep
and Dr. Pascual are charged with violating Articles 172 and 262 of the
Revised Penal Code, in relation to Republic Act No. 7610. Article 172,
paragraph 2 of the Revised Penal Code, defines the crime of falsification
of a private document, viz –
Art. 172. Falsification by private individuals and use of falsified documents.
– The penalty of prision correccional in its medium and maximum periods
and a fine of not more than 5,000 pesos shall be imposed upon:
xxxx
2. Any person who, to the damage of a third party, or with the intent to
cause such damage, shall in any private document commit any of the acts
of falsification enumerated in the next preceding article.
Petitioner Gloria Aguirre charges respondents with falsification of a
private document for conspiring with one another in keeping Larry "in
the dark about the foregoing (vasectomy) as the same was concealed
from him by the respondents x x x,"53 as well as for falsely concluding and
diagnosing Lourdes Aguirre to be suffering from Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which
defines the acts constitutive of falsification, that is –
Art. 171. x x x shall falsify a document by committing any of the following
acts:
1. Counterfeiting or imitating any handwriting, signature, or rubric;
2. Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding
statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
Page 58 of 59
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which
changes its meaning;
7. Issuing in an authenticated form a document purporting to be a copy
of an original document when no such original exists, or including in such
copy a statement contrary to, or different from, that of the genuine
original; or
8. Intercalating any instrument or note relative to the issuance thereof in
a protocol, registry, or official book.
vis-à-vis the much criticized Psychiatric Report, shows that the acts
complained of do not in any manner, by whatever stretch of the
imagination, fall under any of the eight (8) enumerated acts constituting
the offense of falsification.
In order to properly address the issue presented by petitioner Gloria
Aguirre, it is necessary that we discuss the elements of the crime of
falsification of private document under the Revised Penal Code, a crime
which all the respondents have been accused of perpetrating. The
elements of said crime under paragraph 2 of Article 172 of our penal
code are as follows: 1) that the offender committed any acts of
falsification, except those in par. 7, enumerated in Article 171; 2) that the
falsification was committed in any private document; and 3) that the
falsification caused damage to a third party or at least the falsification
was committed with intent to cause such damage. Under Article 171,
paragraph 2, a person may commit falsification of a private document by
causing it to appear in a document that a person or persons participated
in an act or proceeding, when such person or persons did not in fact so
participate in the act or proceeding. On the other hand, falsification
under par. 3 of the same article is perpetrated by a person or persons
who, participating in an act or proceeding, made statements in that act
or proceeding and the offender, in making a document, attributed to
such person or persons statements other than those in fact made by such
person or persons. And the crime defined under paragraph 4 thereof is
committed when 1) the offender makes in a document statements in a
narration of facts; 2) he has a legal obligation to disclose the truth of the
facts narrated by him; 3) the facts narrated by the offender are absolutely
false; and 4) the perversion of truth in the narration of facts was made
with the wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case at bar, in
order that respondent Dr. Pascual, and the rest acting in conspiracy with
her, to have committed the crime of falsification under par. 3 and 4 of
Article 171 of the Revised Penal Code, it is essential that that there
be prima facie evidence to show that she had caused it to appear that
Larry gave his consent to be vasectomized or at the very least, that the
proposed medical procedure was explained to Larry. But in the assailed
report, no such thing was done. Lest it be forgotten, the reason for having
Larry psychiatrically evaluated was precisely to ascertain whether or not
he can validly consent with impunity to the proposed vasectomy, and not
to obtain his consent to it or to oblige respondent Dr. Pascual to explain
to him what the import of the medical procedure was. Further, that
Larry's consent to be vasectomized was not obtained by the psychiatrist
was of no moment, because nowhere is it stated in said report that such
assent was obtained. At any rate, petitioner Gloria Aguirre contradicts
her very own allegations when she persists in the contention that Larry
has the mental age of a child; hence, he was legally incapable of validly
consenting to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes Aguirre,
with regard to paragraph 2 of Article 171 of the Revised Penal Code, we
quote with approval the succinct statements of the Assistant City
Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her own personal
knowledge in her report does not mean that she committed falsification
in the process. Her sources may be wrong and may affect the veracity of
her report, but for as long as she has not alleged therein that she
personally diagnosed Lourdes Aguirre, which allegation would not then
be true, she cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with more reason
the other respondents are not liable.54
As to the charge of mutilation, Art. 262 of the Revised Penal Code defines
the crime as –
Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall intentionally
mutilate another by depriving him, either totally or partially, of some
essential organ for reproduction.
Any other intentional mutilation shall be punished by prision mayor in its
medium and maximum periods.
A straightforward scrutiny of the above provision shows that the
elements55 of mutilation under the first paragraph of Art. 262 of the
Revised Penal Code to be 1) that there be a castration, that is, mutilation
of organs necessary for generation; and 2) that the mutilation is caused
purposely and deliberately, that is, to deprive the offended party of some
essential organ for reproduction. According to the public prosecutor, the
facts alleged did not amount to the crime of mutilation as defined and
penalized above, i.e., "[t]he vasectomy operation did not in any way
deprived (sic) Larry of his reproductive organ, which is still very much part
of his physical self." Petitioner Gloria Aguirre, however, would want this
Court to make a ruling that bilateral vasectomy constitutes the crime of
mutilation.
This we cannot do, for such an interpretation would be contrary to the
intentions of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in
which this Court had the occasion to shed light on the implication of the
term mutilation. Therein we said that:
The sole point which it is desirable to discuss is whether or not the crime
committed is that defined and penalized by article 414 of the Penal Code.
The English translation of this article reads: "Any person who shall
intentionally castrate another shall suffer a penalty ranging from
reclusion temporal to reclusion perpetua." The Spanish text, which
should govern, uses the word "castrare," inadequately translated into
English as "castrate." The word "capar," which is synonymous of
"castrar," is defined in the Royal Academic Dictionary as the destruction
of the organs of generation or conception. Clearly it is the intention of
the law to punish any person who shall intentionally deprived another of
any organ necessary for reproduction. An applicable construction is that
of Viada in the following language:
"At the head of these crimes, according to their order of gravity, is the
mutilation known by the name of 'castration' which consists of the
amputation of whatever organ is necessary for generation. The law could
not fail to punish with the utmost severity such a crime, which, although
not destroying life, deprives a person of the means to transmit it. But
Page 59 of 59
bear in mind that according to this article in order for 'castration' to exist,
it is indispensable that the 'castration' be made purposely. The law does
not look only to the result but also to the intention of the act.
Consequently, if by reason of an injury or attack, a person is deprived of
the organs of generation, the act, although voluntary, not being
intentional to that end, it would not come under the provisions of this
article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70.
See to same effect, 4 Groizard, Codigo Penal, p. 525.)
Thus, the question is, does vasectomy deprive a man, totally or partially,
of some essential organ of reproduction? We answer in the negative.
In the male sterilization procedure of vasectomy, the tubular passage,
called the vas deferens, through which the sperm (cells) are transported
from the testicle to the urethra where they combine with the seminal
fluid to form the ejaculant, is divided and the cut ends merely tied.57 That
part, which is cut, that is, the vas deferens, is merely a passageway that
is part of the duct system of the male reproductive organs. The vas
deferens is not an organ, i.e., a highly organized unit of structure, having
a defined function in a multicellular organism and consisting of a range
of tissues.58 Be that as it may, even assuming arguendo that the tubular
passage can be considered an organ, the cutting of the vas deferens does
not divest or deny a man of any essential organ of reproduction for the
simple reason that it does not entail the taking away of a part or portion
of the male reproductive system. The cut ends, after they have been tied,
are then dropped back into the incision.59
Though undeniably, vasectomy denies a man his power of reproduction,
such procedure does not deprive him, "either totally or partially, of some
essential organ for reproduction." Notably, the ordinary usage of the
term "mutilation" is the deprivation of a limb or essential part (of the
body),60 with the operative expression being "deprivation." In the same
manner, the word "castration" is defined as the removal of the testies or
ovaries.61 Such being the case in this present petition, the bilateral
vasectomy done on Larry could not have amounted to the crime of
mutilation as defined and punished under Article 262, paragraph 1, of
the Revised Penal Code. And no criminal culpability could be foisted on
to respondent Dr. Agatep, the urologist who performed the procedure,
much less the other respondents. Thus, we find sufficient evidence to
explain why the Assistant City Prosecutor and the DOJ ruled the way they
did. Verily, We agree with the Court of Appeals that the writ
of certiorari is unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Court's general policy of
non-interference in the conduct of preliminary investigations. As it has
been oft said, the Supreme Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to
support at least a prima facie case.62 The courts try and absolve or
convict the accused but, as a rule, have no part in the initial decision to
prosecute him.63 The possible exception to this rule is where there is an
unmistakable showing of a grave abuse of discretion amounting to lack
or excess of jurisdiction that will justify judicial intrusion into the
precincts of the executive. But that is not the case herein.
WHEREFORE, premises considered, the instant petition is DENIED for lack
of merit. The assailed 21 July 2005 Decision and 5 December
2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370
are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.
SO ORDERED.