PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAN AVE y TABOBO, accused- Atty.
Atty. Valenzuela survived the attack due to the immediate medical treatment he received
appellant.
DECISION
Puno, J.:
The appellant, DAN AVE, was charged with the crimes of Frustrated Murder and Murder
before the Regional Trial Court of Urdaneta, Pangasinan.
The Information in Criminal Case No. U-9168, for frustrated murder, reads:[1]
That on or about August 24, 1996, in the evening at Brgy. Camantiles, Municipality of Urdaneta,
Province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named
accused armed with a long firearm with intent to kill, treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously shoot Atty. Napoleon Valenzuela, inflicting
upon him a gunshot wound, the accused having thus performed all the acts of execution which
would have produce(d) the crime of Murder as a consequence but, which nevertheless, did not
produce it by reason of causes independent of the will of the accused that is, due to the timely
and able medical assistance rendered to the said Atty. Napoleon Valenzuela which prevented his
death, to his damage and prejudice.
CONTRARY to Art. 248, in relation to Arts. 6 and 50 of the Revised Penal Code.
The Information in Criminal Case No. U-9032, for murder, reads:[2]
That on or about the 24th day of August, 1996, at barangay Camantiles, municipality of Urdaneta,
Province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused
with intent to kill and by means of treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack and shoot one Pedro Valenzuela, Jr. y Castisima, with
the use of a long firearm, hitting and injuring the head of said victim, and which injuries being
fatal, caused his death, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code.
The appellant was also charged with Illegal Possession of Firearms, docketed as Criminal
Case No. U-9153. The three (3) cases were later consolidated.[3]
The appellant went into hiding for almost two (2) years and his cases had to be
archived.[4] On August 18, 1998, he was finally arrested and later pled not guilty to all the
charges. The three (3) cases were tried jointly.[5]
The prosecution established that in the evening of August 24, 1996, Pedro Valenzuela, Jr.,
Atty. Napoleon Valenzuela, Isidro (Benito) Ave, Calixto Valenzuela, Leopoldo Valenzuela, and
Rogelio Gacad had a drinking spree in the vicinity of the house of Pedro Valenzuela, Jr.
in Barangay Camantiles, Urdaneta City, Pangasinan.[6] A rectangular bamboo bed served as their
makeshift table. The place was well lighted by a 100-watt Philipps bulb placed just above them
and by the lights coming from the house of Pedro. During the revelry, Pedro was seated beside
his cousin, Atty. Valenzuela.[7]
At about 9:00 p.m., Rogelio Gacad found the need to answer the call of nature. With his
back facing his companions, he relieved himself on a spot about five (5) or six (6) meters away
from them.[8]
Out of nowhere, the appellant appeared. Unnoticed by the group, the appellant stood
behind Pedro and fired at him with a long firearm from a distance of about three (3)
meters. Pedro was hit at the back of his head and he slumped on the makeshift table. Atty.
Valenzuela stood up and checked on Pedro. However, the appellant shot Atty. Valenzuela, the
bullet hitting his stomach. The group scampered to safety.[9]
Leopoldo, brother of Pedro, helped Atty. Valenzuela hide inside their house. They heard
another gunshot. Thereafter, the appellant left the crime scene. Three (3) minutes later,
Leopoldo and his companions got out of the house and saw Pedro lying in a pool of blood. Atty.
Valenzuela was rushed to the hospital while Pedro was taken to the morgue.[10]
from Dr. Candido San Juan of the Urdaneta Sacred Heart Hospital (USHH). The extent of the
injury inflicted on Atty. Valenzuela and the operation that he underwent on account of such
gunshot wound, were as follows:[11]
xxxxxxxxx
DIAGNOSIS:
= Gunshot wound, RUQ, Abdomen, Penetrating, Lacerating (R) Lobe, Liver, Perforating
ascending colon, T&T slug lodging at the retroperitoneal space, pelvic area (R) no point of exit
OPERATION:
= Explor-lap, Hepatorrhapy, Colorrhapy and Exteriorization of Ileocecal portion,
= Evacuation of Blood clots and peritoneal lavage and repair of Gunshot wound.
xxxxxxxxx
Dr. San Juan explained that the bullets point of entry was in the abdomen. The slug entered
the abdominal cavity and hit the right lobe of the liver and the ascending portion of the large
intestine or colon. The slug lodged near the pelvic area, at the back, of Atty. Valenzuela. He was
confined at USHH for seven (7) days, from August 24-31, 1996, and was later transferred to a
hospital in Quezon City.
Dr. San Juan could not indicate the healing period of Atty. Valenzuela because he had to
undergo another operation in the ileocecal portion (the junction between the small and large
intestines). He opined that Atty. Valenzuela would have died if not for the immediate
medical assistance he got at the hospital. Considering the location of the gunshot wound, Dr.
San Juan said that the assailant could have been facing Atty. Valenzuela, or could have been
standing beside him during the attack.[12]
During his confinement at the Urdaneta Sacred Heart Hospital, Atty. Valenzuela incurred
medical expenses. The fifty-five (55) receipts for the expenses he incurred were marked as Exhs.
N, N-1 to N-54. He was subsequently transferred to Gen. Malvar Hospital in Commonwealth
Avenue, Quezon City, where he received further medical care for his injury. The sixty (60)
receipts covering the expenses he incurred in the said hospital were marked as Exh. O, Exh. O-1
to Exh. O-59. His doctors fee (Exh. P) amounted to P16,251.80.[13]
Atty. Valenzuela is an associate lawyer at Maniacop Law Office in Quezon City. From
August 1996 to February 1997, he failed to practice the law profession due to his injury. He
claimed that his lost income for the said period amounted to P150,000.00. He works on a salary
basis, but also receives appearance fees. He settled his hospital bills using his familys savings in
the bank. He suffered sleepless nights after the shooting incident because he almost died. He
could not think of any reason behind the shooting incident because the accused is his distant
relative.[14]
Pedro Valenzuela, Jr. was autopsied by Dr. Ramon B. Gonzales, Jr., Rural Health Physician
of the Municipal Health Office in Urdaneta, Pangasinan. The Autopsy Report[15] reads:
xxxxxxxxx
SIGNIFICANT EXTERNAL FINDINGS:
Ecchymosis both upper eyelids
Gunshot wound head, left parietal region 5mm. x 5mm. x 6 cm. deep directed upwards.
SIGNIFICANT INTERNAL FINDINGS:
Fracture, circular left parietal bone.
Slug recovered at right frontal area between brain and right frontal bone.
Cerebral hemorrhage and injury, left parietal lobe to right frontal lobe brain.
CAUSE OF DEATH:
Cerebral Hemorrhage and Injury, left parietal lobe to right frontal lobe, brain due to Gunshot
Wound Head.
 The victim, 54, was a former member of the Philippine Navy. His wife, Erlinda Valenzuela,
claimed that Pedro used to receive P6,258.00 monthly from the finance center at Camp
Aguinaldo and P3,000.00 monthly from PVAO, as his old age pension. In addition, he
earned P180.00 daily as a tricycle driver.[16]
Erlinda made a list[17] of the expenses she incurred during the wake and the internment
of Pedro. She allegedly spent the following amounts: P91,341.50 for eighteen (18) days because
several members of the Philippine Navy attended her husbands wake, [18] P15,000.00 for the
nine-day novena, P20,000.00, for the ninth month death anniversary, P25,000.00 for funeral
services,[19] and P6,121.75 for the tomb, tomb stone and shade.
Erlinda did not present any receipts for the expenses she incurred, except for the funeral
services provided by JC Mortuarium. She also admitted that the pensions her husband used to
receive were transmitted to her and her children upon his death. [20]
To prove the charge of illegal possession of firearm, the prosecution presented SPO4
Roberto Manuel, the Assistant Firearms Chief of the Firearms and Explosives Office, Pangasinan
Police Provincial Office, Lingayen, Pangasinan.[21] He testified that their office maintains the
records of licensed firearm holders who are residents of Pangasinan and processes applications
for firearm licenses and releases firearm licenses. As per the records forwarded to their office
by Camp Crame, the appellant is not a licensed firearm holder.[22]
Another witness, SPO1 Juanito Pedral of the Firearms & Explosives PNCO of Police
Regional Office I, San Fernando City, La Union, testified that the appellant is not included in the
list of firearm holders in Region I.[23]
The appellant was the sole witness for the defense. He gave a different version of the
shooting incident.
In the evening of August 24, 1996, the appellant was in his house in Barangay Camantiles,
Urdaneta City. At 7:30 p.m., his 19-year old cousin, Richard Geron, came and told him that his
mother, Marta, would talk to him concerning the spraying of their mango trees. [24] He went to
the house of his Aunt Marta and along the way, walked past the house of Pedro Valenzuela,
Jr. Someone from Pedros group saw him and whistled at him. He ignored them. When he reached
his aunts house, they discussed how they would spray the mango trees. He headed back home
at 8:30 p.m.[25]
On his way home, the appellant again passed by the place where Pedros group had been
drinking. Leopoldo Valenzuela confronted him and said, We were calling for you when you
passed by, but you did not even mind us. The appellant apologized and explained that he did not
notice them. Leopoldo asked him to join them. At first, the appellant refused but later relented
in order not to slight Leopoldo.[26]
Calixto was also agitated because appellant snubbed them earlier that evening. Calixto
allegedly confronted the appellant for refusing to drink with them and for acting like he was mad
at them. Calixto gave him a drink. The appellant accepted it and again apologized but that did
not placate Calixto. Calixto still badmouthed him and charged him of being arrogant.Thereafter,
Calixto reached out for a long firearm and aimed it at him. They grappled for the firearm. During
the struggle, the trigger accidentally went off. Calixto uttered, vulva of your mother, get loose of
the gun. The appellant was able to push Calixto away and ran to his house. He related the
incident to his mother.[27]
The appellant claimed he had no quarrel with Pedro. He also saw for the first time Atty.
Valenzuela that fateful night. He claimed that they owned the firearm. [28]
On November 10, 1998, the trial court granted the demurrer to evidence in the illegal
possession of firearm case (Criminal Case No. U-9153). Relying in People vs. Molina,[29] in
relation to Republic Act No. 8294, the appellant was acquitted for illegal possession of firearm.
On November 11, 1998, the trial court rendered a Joint Decision, [30] finding the appellant
guilty of murder and frustrated murder. It considered the use of an unlicensed firearm in the
commission of the crime as an aggravating circumstance in the murder case and meted the death
penalty against the appellant. It appreciated no aggravating or mitigating circumstance in the
frustrated murder case. The dispositive portion of the trial courts decision reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds the accused, DAN AVE y
TABOBO, alias Dan-Dan:
IN CRIMINAL CASE NO. U-9168:
GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER and applying the
Indeterminate Sentence Law, there being no aggravating or mitigating circumstance, hereby
sentences him to suffer the indeterminate penalty of EIGHT (8) YEARS and ONE (1) DAY
of prision mayor in its medium period, as MINIMUM to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal in its medium period, as MAXIMUM; and to pay
the offended party ATTY. NAPOLEON VALENZUELA in the amount of P216,251.80 as actual
damages; P150,000.00 as loss of income; and P1,000,000.00 as moral damages.
IN CRIMINAL CASE NO. U-9032:
GUILTY beyond reasonable doubt of the offense of MURDER defined and penalized under
Republic Act No. 7659, otherwise known as the Heinous Crime Law, the offense having been
committed with the attendant special aggravating circumstance of the use of unlicensed firearm
in the commission of the crime (Republic Act 8294), hereby sentences him to
the ultimuum suplicium of DEATH to be executed pursuant to Republic Act No. 8177, known as
the Lethal Injection Law, to pay the heirs of the victim, Pedro Valenzuela, in the amount
of P50,000.00 as indemnity; P157,463.35 as actual damages; and P500,000.00 as moral
damages.
To pay costs.
In fin, it is said: Dura lex, sed lex, translated as: The law is harsh, but it is the law!
SO ORDERED.
Hence, this automatic review.
The Appellants Brief assigns the following errors:
First: THE TRIAL COURT (ERRED) IN GIVING CREDENCE TO THE TESTIMONY OF THE
WITNESSES FOR THE PROSECUTION, OVERLOOKED THE SIGNIFICANCE, SUBSTANCE AND
INFLUENCE OF CONTRADICTORY EVIDENCE ON RECORD; and,
Second: THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE
CRIMES OF FRUSTRATED MURDER AND MURDER, BASED ON THE PROSECUTIONS EVIDENCE
AND NOT ON THE UNCONTROVERTED TESTIMONY OF ACCUSED-APPELLANT.
We affirm the conviction with modifications.
The first error involves a calibration of the credibility of the prosecution witnesses. It is
an established rule that when it comes to credibility of witnesses, appellate courts generally do
not overturn the findings of trial courts. The latter are in a best position to ascertain and measure
the sincerity and spontaneity of witnesses through their actual observation of the witnesses
manner of testifying, demeanor, and behavior in court. [31] In the cases at bar, the trial court was
highly impressed by the credibility of the prosecution witnesses, thus:[32]
Unfortunately for the accused, the Court finds the testimonies of the witnesses for the
prosecution which are unequivocal, forthright and replete with details, all of which were seals
of self-authentication of their credibility and which convinced the Court to accord full faith and
credit to their version. The records are barren of any unworthy motive on their part to fabricate
the serious charges against the accused. (emphasis ours)
In contrast, it rejected the appellants defense of accidental shooting as a prevaricated
concoction, melodramatically orchestrated. It held:[33]
. If it is really true that while the accused was grappling with Calixto Valenzuela (for) said long A: Three (3) explosions because after I was shot, my cousin Leopoldo Valenzuela
firearm, why did he fail to describe or relate how the victims sustained the fatal injuries? . helped me and we went inside the house of Pedro Valenzuela, sir.
If the accused is innocent as a cherubim, why did he not report immediately to COURT:
the barangay officials or to the police authorities of Urdaneta City what really happened as per Q: How many explosions did you hear or not?
his version? Why did he sleep immediately? To join (M)orpheus in a sweet dreams (sic) of A: Three, because when we were inside the house of Pedro Valenzuela, the accused
ecstasy? again fired another shot when I was inside the house, sir.
xxxxxxxxx Q: So one for Pedro Valenzuela, and one for you and another, when you were
Why is it that the accused was only arrested on August 19, (sic) 1998 or two (2) years after the already inside the house?
shooting incidents? He was found nowhere after the incident indicating that he fled. He is a A: Yes, your Honor.
revenant. PROS. MATRO:
xxxxxxxxx Q: How far is the house of Pedro Valenzuela from the place where you were having
Accuseds version in sum is unconvincing, flawed as it is by serious inconsistencies. Accused the drinking?
resort to the jaded apologia of denial and accidental shooting hardly merits symphaty (sic). A: Just two (2) meters away, just beside the house, sir.
We have carefully studied the records of these cases. We also find the testimonies of the xxxxxxxxx
prosecution witnesses to be forthright and unequivocal. Their accounts of the shooting incident Q: It was nine oclock in the evening when the incident took place. How were you
converged on material points. Atty. Valenzuela testified as follows:[34] able to recognize the person of the accused?
PROS. MATRO: A: The place where we were drinking was lighted by a Philipps bulb, sir.
Q: Do you know personally this Dan-Dan Ave? Leopoldo Valenzuela, a brother of the deceased victim, corroborated the testimony
A: I do not know him personally but I saw him on that night of the shooting in of Atty. Valenzuela, thus:[35]
question. PROSECUTOR MATRO:
Q: If he is inside the courtroom, will you please point to him? Q: And at that particular time, 9:00 in the evening, do you recall if there was any
A: There, sir. unusual incident that happened?
INTERPRETER: A: There was, sir.
Witness is pointing to a person seated on the bench and when asked his name, he Q: What was that unusual incident you are referring to?
gave his name as Dan-Dan Ave. A: Somebody fired his gun, sir.
xxxxxxxxx Q: What happened when somebody fired his gun?
Q: You said you were shot by Dan-Dan Ave, did you see him shoot Pedro A: Pedro Valenzuela was shot at the back of his head, sir.
Valenzuela? Q: Did you see who shot him?
A: No, sir. A: Yes, sir.
Q: So, why did you say earlier that Dan-Dan Ave shot Pedro Valenzuela? Q: Who shot him?
A: Because when I heard the explosion, I looked at my cousin Pedro Valenzuela who A: Dan Ave.
made a gurgling sound and when I stood up and looking (sic) at him I also (The witness is pointing to a person seated on the bench inside the courtroom
heard another explosion and when I looked up, I saw a person, that man, wearing stripe shirt and blue pants, who when asked his name answered
holding a gun, pointing at me, sir. DAN AVE).
Q: After that, what happened next? Q: How were you able to recognize the person of Dan Ave when it was 9:00 oclock
A: I felt some kind of pain and sensation on my stomach and then I heard my cousin, in the evening.
Leopoldo Valenzuela, who told me that it was Dan-Dan Ave who shot (us). A: It was bright because there was light, sir.
xxxxxxxxx Q: Where was that light placed or attached?
Q: Now, Mr. Witness, how far was this Dan-Dan Ave from you when you saw him A: It was near the house or just above us, sir.
holding a firearm and pointing at you? Q: What kind of light was that?
A: I think three (3) meters away, sir. A: It was a Philipps bulb, sir.
Q: What were your relative positions with Pedro Valenzuela from Dan-Dan Ave at xxxxxxxxx
that time? Q: Where was the accused when he shot the victim Pedro Valenzuela?
A: I was seated beside Pedro Valenzuela, sir. A: He was at the back of Pedro Valenzuela, sir.
Q: And where was Dan-Dan Ave when you saw him holding a gun aiming at you? Q: How far was he?
A: He was directly behind Pedro Valenzuela, sir. A: Around 3 meters, sir.
Q: And how far was Pedro Valenzuela from him? xxxxxxxxx
A: I think it was also three (3) meters away, sir. Q: How many times did Dan Ave shoot Pedro Valenzuela?
Q: And how many explosions did you hear Mr. Witness? A: Once, sir.
xxxxxxxxx Q: How far were you?
Q: And after Pedro Valenzuela fell down, what happened next, if any? A: Around five to six (5-6) meters, Your Honor.
A: Atty. Valenzuela stood up and he was about to assist Pedro Valenzuela and ATTY. AOANAN:
again there was another gunshot? Q: And what caught your attention to look where (sic) the gun reports?
Q: Where did that gunshot emanate? A: Yes, sir, I looked when I heard the gun report and I saw Dan-Dan Ave.
A: From Dan Ave, sir. COURT:
Q: And where was this shot directed? Q: Where was the accused when you saw him in relation to your companions?
A: To Atty. Valenzuela, sir. A: East side of my companions, Your Honor.
xxxxxxxxx xxxxxxxxx
Q: Where was Dan Ave in relation to Atty. Valenzuela when he fired at him? COURTS QUESTIONING:
A: He was at the back of Pedro Valenzuela and Atty. Valenzuela, sir. xxxxxxxxx
Q: How many times did the accuse(d) fire at Atty. Valenzuela? Q: While you were drinking for 2-1/2 hours, Dan-Dan Ave was not yet there?
A: Only once, sir. A: Yes, Your Honor.
xxxxxxxxx Q: When was the first time you saw him before the shooting?
PROSECUTOR MATRO: A: When he shot Pepe (Pedro) Valenzuela, Your Honor.
Q: before Dan Ave shot Pedro Valenzuela, did you notice his presence? Q: Do you mean to say that he just arrived at that particular time, nine oclock in the
A: No, sir. evening?
Q: Why not when you were supposed to be facing his direction? A: Yes, Your Honor.
A: We already noticed his presence when we heard his (sic) gunshot, sir. Q: It is not very clear yet with the Court. Ave shot first who?
Q: And what kind of firearm did Dan Ave used in shooting Pedro Valenzuela and A: Pepe Valenzuela, Your Honor.
Atty. Valenzuela? xxxxxxxxx
A: It was a long firearm, like this, sir . Q: Before you looked back, you said that you heard gun report. How many gun
xxxxxxxxx report did you hear before you looked back?
Q: After Atty. Valenzuela was shot, what did you do? A: Two (2) gun reports, Your Honor.
A: I assisted Atty. Valenzuela and we went inside the house of Pedro Valenzuela, sir. Q: And then, the third gun report?
So did Rogelio Gacad who testified as follows:[36] A: Yes, sir.
ATTY. AOANAN: (CROSS-EXAMINATION) Q: How many times did he fire at Pepe Valenzuela?
xxxxxxxxx A: Once, Your Honor.
Q: Now, it was when you were urinating that you heard the gunshot report, is that Q: After firing at Pepe Valenzuela once, what else did the accused do?
correct? A: He also fired his gun at Atty. Valenzuela who was hit on the right side of his
A: Yes, sir. stomach, Your Honor.
Q: And according to your sworn statement, you heard three consecutive shots, is Q: How many times when he fired upon the lawyer?
that correct? A: Once, Your Honor.
A: Yes, sir. Q: Then, what did he do?
Q: Now, Mr. Witness, when you were urinating, were you facing East, West, North, A: he fired another shot, I am not exactly sure what direction, because I was already
or South? nervous, Your Honor.
A: West, sir. The lack of ill motive on the part of the prosecution witnesses in testifying against the
xxxxxxxxx appellant makes their testimonies more credible. We note that Atty. Valenzuela had not met the
COURT: appellant prior to the shooting incident.[37] A resident of Quezon City, Atty. Valenzuela was in
Q: What is the direction of the place where you were urinating in relation to the Pangasinan that tragic day because his cousin Pedro had requested for his legal assistance
place where you were drinking? What direction were you in relation to the concerning a theft case filed against him.[38] He was clueless on why the appellant shot him and
place where you were drinking, that is the question of the counsel? Pedro because they are the appellants distant relatives. [39] The appellant himself confirmed that
A: West side, sir. it was his first time to encounter Atty. Valenzuela that fateful night. He admitted he had no prior
ATTY. AOANAN: misunderstanding with Atty. Valenzuela and Pedro.[40] As for Rogelio, there is also no iota of
Q: So, Mr. Witness, to be very clear, we suppose that the place where you were evidence that he has ill feelings toward the appellant.
sitting is the place where you were urinating. Now, where is the place where The blood relationship of Leopoldo and Atty. Valenzuela to Pedro would not make their
you were drinking? testimonies unworthy of belief. On the contrary, relationship could strengthen the witnesses
A: At my back, sir, which is the east side. credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than the
COURT:
actual culprit.[41] Their natural interest in securing the conviction of the guilty would deter them
from implicating a person other than the true offender.[42]
We reject appellants claim that the trial court has overlooked contradictory evidence that
would affect the credibility of the prosecution witnesses. Essentially, these evidence, according
to the appellant are:
(1) The prosecutions evidence on the sitting arrangements of the deceased victim and his
companions during the shooting incident are allegedly full of inconsistencies.
(2) Rogelio lied when he demonstrated at the trial how the appellant shot the victims
since, at that time, Rogelio was urinating and he turned around only after he had heard the two
(2) successive gunshots. His testimony should be disregarded pursuant to the doctrine falsus in
uno falsus in omnibus.
(3) The trajectory of the bullets that hit Pedro and Atty. Valenzuela, per the medical
findings of Dr. San Juan, are inconsistent with the testimonies of Leopoldo and Rogelio on the
position of the appellant vis-a-vis his victims, Pedro and Atty. Valenzuela. For instance, Rogelio
claimed that he (the appellant) was on the east side of the two (2) victims when he shot
Pedro. However, the medical report of Dr. Gonzales, Jr. showed that the fatal bullet entered the
left portion of Pedros head. The appellant argues that if he were in the east when he shot Pedro,
the head injury would have been on the right side, not on the left side.
On the other hand, the trajectory of the bullet that hit Atty. Valenzuela belies the claim of
Rogelio that he (appellant) was standing directly behind Pedro during the shooting incident. The
appellant claims that the medical records show that the bullet entered the right side of Atty.
Valenzuelas stomach and the slug lodged deeper into the right side. The appellant suggests that
if Pedro were sitting at the right side of Atty. Valenzuela while the appellant was directly behind
Pedro, the bullet that hit Atty. Valenzuela would have proceeded further to the left side, not the
right side.
It is elementary that not all inconsistencies in the witnesses testimony affect their
credibility. Inconsistencies on minor details and collateral matters do not affect the substance of
their declaration, their veracity, or the weight of their testimonies. [43] Thus, although there may
be inconsistencies on the testimonies of witnesses on minor details, the same do not impair the
credibility of the witnesses where there is consistency in relating the principal occurrence and
positive identification of the assailants.[44]
In the cases at bar, it was fully established that prosecution witnesses Leopoldo, Atty.
Valenzuela and Rogelio Gacad were at the crime scene during the shooting incident. They
unanimously identified the appellant as the assailant. They declared that the appellant appeared
at the scene unnoticed and suddenly fired two (2) successive shots at them. One shot was for
Pedro who was hit in the head, the other, for Atty. Valenzuela who was seriously wounded in the
stomach. They identified the weapon used as a long firearm. The consistent testimonies of the
aforesaid prosecution witnesses on these material points cannot be disregarded by any court.
In People vs. Sabalones,[45] it was alleged that the prosecution account had inconsistencies
relating to the number of shots heard, the interval between the gunshots and the victims
positions when they were killed. We dismissed the allegation as minor and inconsequential
flaws which strengthen, rather than impair, the credibility of said eyewitnesses and held
that such harmless errors are indicative of truth, not falsehood, and do not cast serious doubt
on the veracity and reliability of the testimony of the complainant.
In line with the above ruling, we hold that the cited inconsistencies in the testimonies of
the prosecution witnesses and their sketches of the sitting arrangement during their drinking
spree refer to trivial matters and are insufficient to destroy their credibility. We do not expect
witnesses to give an error-free testimony, especially when the hearing of the case took place
almost two (2) years after the shooting incident, as in the cases at bar.
The other inconsistent evidence alluded to by the appellant was the trajectory of the
bullets that caused the death of Pedro and seriously injured Atty. Valenzuela vis--vis the sketch
of Rogelio showing that the appellant appears to be standing on the east side of Pedro. Appellant
contend that if he were east of Pedro, the bullet would have entered the right side of the head,
not the left, as per his medical records.
Again, we are not convinced that Rogelio indeed lied when the latter claimed that the
appellant was standing in the east, directly behind Pedro, during the shooting incident. At the
trial, Rogelio testified that he was facing west when he urinated. His companions were behind
him, or in the east. He turned around upon hearing the first two (2) bursts of gunfire. It is clear
that Rogelio did not see the exact positions of the appellant and Pedro when the first shot was
fired. What he saw then was that Pedro was hit in the head and slumped on the bamboo bed
while Atty. Valenzuela was hit in the stomach while about to help Pedro. It was only then that
Rogelio saw the appellant who was armed with a long firearm, standing behind Pedro. Clearly,
the sketch drawn by Rogelio pertains to the positions of the protagonists after, and not during
the shots were fired. The alleged inconsistency is, therefore, more imaginary than real. Even
assuming that the position of the appellant was not accurately depicted in the questioned sketch,
still, it does not negate the fact that the appellant was the triggerman. He was the only person
standing there, close to the victims, with his long firearm pointed at Pedro and Atty. Valenzuelas
direction. There could be no other culprit.
As for the injury of Atty. Valenzuela, the records show that he was moving when the
appellant shot himhe was turning to his right to check on Pedro after the first gunshot. Thus, the
appellant was almost in front, or, at the very least, at the side of Atty. Valenzuela, although he
was still standing behind Pedro, when the second shot was fired.
The foregoing position of the parties is consistent with the medical opinion of Dr. San
Juan. He explained that the trajectory of the bullet as it entered the right side of the stomach of
Atty. Valenzuela showed that the appellant was in front or at the side of the said victim. [46] He
opined that Atty. Valenzuela could have been in a stooping position when he was shot in such a
stooping position, it was not far-fetched that the bullets entry was at the right side of his stomach
and for the slug to lodge on the right side of his pelvic area, at the back. [47]
In sum, we are morally convinced of appellants guilt. Significantly, the records show that
he took flight after the killingthe shooting incident happened on August 24, 1996 while the
appellant was arrested only on August 18, 1998, almost two (2) years later. The appellant did
not offer any explanation for his long absence. Flight, when unexplained, is an indicium of
guilt.[48] Indeed, the innocent is as bold as a lion, while the guilty runs even when no man pursues
him.
The trial court correctly found the appellant guilty of murder and frustrated murder in
view of the presence of treachery. There is treachery when the means, methods, and forms of
execution employed gave the person attacked no opportunity to defend himself or to retaliate;
and such means, methods, and forms of execution were deliberately and consciously adopted by
the accused without danger to his person.
In the cases at bar, the appellant surreptitiously arrived at the crime scene. He suddenly
shot Pedro and Atty. Valenzuela from behind at a close range of three (3) meters while he was
having a drinking spree with their relatives and friends. The attack was unexpected and swift.
Pedro and Atty. Valenzuela had no opportunity to defend themselves and the appellant was not
exposed to any danger in view of the unexpected attack. Thus, the aggravating circumstance of
treachery was established.
The medical report showed that Atty. Valenzuela was critically wounded during the
shooting incident. His vital organs, namely, lungs and abdomen, were perforated. The gunshot
wound would have caused his death, had it not been for the timely and adequate medical
intervention provided by Dr. San Juan. Thus, the appellant was also correctly found liable for the F. The Court can only give credence to actual expenses supported by receipts which appear to
frustrated murder of Atty. Valenzuela. have been genuinely spent in connection with the victims death. [60] The moral damages in the
We now review the penalties for the crimes committed by the appellant. amount of P500,000 is also modified and reduced to P50,000.00 pursuant to the current policy
The records show that the appellant was not licensed to possess or carry a of this Court.[61]
firearm.[49] Thus, the firearm he used in shooting his victims is unlicensed. The claim of Atty. Valenzuela for the medical expenses he incurred in connection with the
When the crimes at bar were committed in August 1996, the rule was that one who kills injury he suffered is affirmed as they are properly documented. His lost earnings while
another with the use of an unlicensed firearm commits two (2) separate offenses of (1) either recuperating, however, is not supported by evidence. The claim that his lost income amounted
homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of to P150,000.00, from August 1996 to February 1997, is too general and vague. The moral
firearm under the second paragraph of Section 1 of Presidential Decree No. 1866.[50] damages awarded in the amount of P1,000,000.00 is modified and reduced to P50,000.00.
The penalty for murder under Article 248 of the Revised Penal Code, as amended by IN VIEW WHEREOF, the Joint Decision, dated November 11, 1998, of the Regional Trial
Republic Act No. 7659,[51] is reclusion perpetua to death while the penalty prescribed for Court of Urdaneta City, Pangasinan, Branch 45, in Criminal Cases Nos. U-9032 and U-9168, is
aggravated illegal possession of firearm, i.e., the killing of a person with the use of an unlicensed AFFIRMED, with the following modifications:
firearm, under P.D. No. 1866,[52] is death. 1. In Criminal Case No. U-9032, for murder, the appellant is sentenced to suffer the penalty
On June 6, 1997, however, Congress approved Republic Act No. 8294.[53] It provides that of reclusion perpetua and ordered to pay the heirs of the deceased victim, Pedro Valenzuela, Jr.,
if homicide or murder is committed with the use of an unlicensed firearm, such use of an the amounts of: (a) P50,000.00 as civil indemnity for his death, (b) P25,000.00 as actual
unlicensed firearm shall be considered as an aggravating circumstance.[54] In People v. damages, and (c) P50,000.00 as moral damages.
Molina,[55] we held that where murder or homicide is committed, the separate penalty for illegal 2. In Criminal Case No. U-9168, for frustrated murder, the appellant is sentenced to suffer
possession shall no longer be meted out inasmuch as it becomes merely a special the indeterminate sentence of 12 years of prision mayor maximum as minimum, to 14 years, 8
aggravating circumstance. months and 1 day of reclusion temporal medium as maximum. The appellant is also ordered to
The trial court applied R.A. No. 8294 in the murder case at bar and in line with our ruling pay Atty. Napoleon Valenzuela the amounts of: (a) P216,251.80 as actual expenses and
in Molina[56] held that the use of the unlicensed firearm in the killing of Pedro aggravated the (b) P50,000.00 as moral damages.
commission of the crime. He then meted the maximum penalty of death to the appellant. No pronouncement as to costs.
After Molina, however, the Revised Rules of Criminal Procedure was promulgated by this SO ORDERED.
Court and became effective on December 1, 2000. Section 8 of Rule 110 requires that the
complaint or information must specify the qualifying and aggravating circumstances of the
offense if they are to be appreciated. In the case at bar, the special aggravating circumstance of
use of unlicensed firearm was not alleged in the informations. The two (2) informations at bar, THE PEOPLE OF THE PHILIPPINES, G.R. No. 174064
for murder and frustrated murder, merely alleged that the appellant used a long firearm. They Plaintiff,
did not allege that the firearm used was unlicensed. The failure of the prosecution to allege in Present:
the Information the aggravating circumstance of use of unlicensed firearm in committing the
crime of murder prevents us from imposing the death penalty on the appellant even if the same QUISUMBING, J.,
was proved at the trial. The appellant should, therefore, suffer the lesser penalty - versus - Chairperson,
of reclusionperpetua. CARPIO,
The penalty prescribed by the Revised Penal Code for the consummated crime of murder CARPIO MORALES,
is reclusion perpetua to death. For frustrated murder, Article 50 of the same Code decrees the TINGA, and
imposition of the penalty next lower in degree or reclusion temporal.[57] Absent any aggravating HENRY TOGAHAN, EMELDO LAURO, VELASCO, JR., JJ.
or mitigating circumstance, the imposable penalty should be reclusion temporal in its medium DANILO BALINDO (at large) and
period, the duration of which is from 14 years, 8 months and 1 day to 17 years and 4 MARCO TURGA (at large),
months. Applying the Indeterminate Sentence Law, the minimum penalty shall be within the Appellants. Promulgated:
range of prision mayor,[58] the penalty next lower from reclusion temporal. The gravity of the June 8, 2007
injury suffered by Atty. Valenzuela and the manner of execution of the crime by the appellant
compel us to impose the maximum term of 12 years of prision mayor as his minimum x-------------------------------------------------------------------------------x
indeterminate sentence, and 14 years, 8 months and 1 day of reclusion temporal medium as his
maximum indeterminate sentence. DECISION
As for the civil liability of the appellant for the death of Pedro Valenzuela, Jr., we affirm
the award of civil indemnity in the amount of P50,000.00.[59] As regards the actual damages, it TINGA, J.:
appears that the amount of P157,463.25 was based solely on the personal list prepared by the
widow of the deceased victim. The only expense supported by an official receipt was the
memorial services provided by JC Mortuarium, amounting to P25,000.00 marked as Exhibit
Appellants Henry Togahan (Togahan) and Emeldo Lauro (Lauro) assail the Decision [1] of the
Court of Appeals dated 5 May 2006, affirming with modification the Decision[2] of the Regional
Trial Court (RTC), Branch 28,[3] Lianga, Surigao del Sur, dated 24 September 2003. The RTC had
found appellants guilty beyond reasonable doubt for the murder of Ananias Villar, Sr. (Villar),
and his son-in-law David Gene Richardson (Richardson).
On 13 September 2000, appellants, together with their co-accused Danilo Balindo (Balindo) and
Marco Turga (Turga), were charged with two (2) counts of murder, in separate
Informations[4] filed by Prosecutor Zacharias P. Joven, the texts of which read:
Criminal Case No. L-1674
That on the 12th day of May 2000, at about 6:30 oclock in the evening more
or less, in Purok 1, Spring, [B]arangay Amaga, [M]unicipality of Barobo,
[P]rovince of Surigao del Sur, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, armed with .38 caliber pistol,
conspiring, confederating and mutually helping each other, with evident
premeditation, treachery and intent to kill, did then and there willfully,
unlawfully and felon[i]ously shot one Ananias Villar, Sr. with the use of said
deadly weapon, as a result thereof the latter was hit and sustained the
following wounds or injuries:
Gunshot wound[,] suprasternal area
Gunshot wound[,] left flank at the level of umbilicus
Gunshot wound[,] right upper quadrant parasternal
Lacerated wound[,] on left post auricular area
which wounds or injuries caused his instantaneous death to the damage
and prejudice of his heirs in the following amount:
P50,000.00 as life indemnity of the victim
P15,000.00 as moral damages
P15,000.00 as exemplary damages.
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Criminal Case No. L-1675
That on the 12th day of May 2000, at about 6:30 oclock in the evening more
or less, in Purok 1, Spring, [B]arangay Amaga, [M]unicipality of Barobo,
[P]rovince of Surigao del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with .38 caliber pistol,
conspiring, confederating and mutually helping each other, with evident
prem[e]ditation, treachery and intent to kill, did then and there willfully,
unlawfully and felon[i]ously shot one David Gene Richardson, an
[A]merican national, with the use of said weapon, as a result thereof the
latter was hit and sustained the following wounds or injuries:
Gunshot wound[,] right lower quadrant
Hematoma[,] right leg lateral aspect
Abrasion, [l]inear right shoulder
Abrasion, linear lumbar area
which wounds or injuries caused his instantaneous death to the damage
and prejudice of his heirs in the following amount:
P100,000.00 as life indemnity of the victim
P15,000.00 as moral damages
P15,000.00 as exemplary damages.
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Custody only of appellants Togahan and Lauro was acquired. Their co-accused Balindo and
Turga remained at large then and to this day. Upon being arraigned separately, both appellants
pleaded not guilty.[5] Trial on the merits ensued with the prosecution espousing the following
narration of facts:
On 12 May 2000, at around 6:30 p.m., Magdalena Villar (Mrs. Villar), her daughter Vilma Villar-
Richardson (Mrs. Richardson), son-in-law Richardson, grandchildren Kenneth, Kevin, Junelyn,
Jovelyn and Michelle, and brother Pedro Castillo were all watching television in the living room
of their residence in Spring, Amaga, Barobo, Surigao del Sur. Without warning, two armed men
wearing bonnets suddenly arrived. At that time, the victim Villar, husband of Mrs. Villar, was in when he heard a gun burst. He immediately ran towards the house of his grandparents and hid

his room. When Villar heard the commotion, he went to the door and tried to prevent the armed behind a coconut tree, also about fifteen (15) meters from victim Villars house. He claims to have

men from entering, but he was shot twice, pulled towards the balcony and clubbed to death. [6] seen three (3) armed and masked men he identified as Togahan, Lauro and Balindo enter the

victims house. According to the witness, Lauro shot Richardson in the house whereas Lauro and

One of the armed men, later identified as Togahan, pointed a gun at Mrs. Richardson and pulled Balindo shot and clubbed his grandfather in the balcony. After the attack, all the accused ran out

the trigger thrice. The gun did not fire however. The other man, later identified as Lauro, of the house, removing their masks in the process. Witness Lowelito maintained that he had

approached Richardson and likewise pointed a gun at him. When Mrs. Richardson heard gunfire, been friends with the accused for five (5) years and recognized them because of their physical

she asked the men: Who are you, what do you want? To this, Lauro replied: We are here for features and movements and that he could see the events that transpired as there were

war.[7] Mrs. Richardson told her husband to run away but the latter, in an attempt to protect his fluorescent lamps lit inside and outside the house.[11]

wife, struggled and tried to wrestle the gun away from Togahan instead. In the course thereof,
The prosecution likewise presented witnesses to fortify the charges of participation against
Lauro shot Richardson then ran out of the house with Richardsons 3-year old son.[8] Richardson,
appellants. Witness Rosemarie Enriquez, a former sweetheart of Togahan, testified that the pair
in spite of his wound, chased Lauro but was later found sitting on the mud, unable to talk and
of slippers recovered from the scene of the crime belonged to the latter.[12] It was witness
dying. The rest of the family had fled during the commotion and sought refuge. Villar and
Federico Sayson, Barangay Kagawad of Purok 1, Spring, Amaga, Barobo, Surigao del Sur, who
Richardson were brought to DO Plaza Memorial Hospital in Patin-ay, Prosperidad, Surigao del
discovered the pair of slippers and a dirty white jacket about thirty (30) meters from the house
Sur but were dead upon arrival.[9]
of Villar.[13]

SPO2 Santo Ocate, the firearm examiner of the Philippine National Police, Caraga Region who
In her testimony, Mrs. Richardson narrated that during the struggle between her husband and
conducted the physical examination of two bullets recovered from the crime scene, testified that
Togahan for the gun, the mask of the latter was removed by Richardson; thus, she was able to
the bullets were discharged from a .38 caliber revolver.[14]
recognize Togahan as the assailant who poked and tried to fire the gun at her. Mrs. Richardson

was able to identify Lauro through his voice and physical appearance as the one who remarked
Upon request of Mrs. Richardson, Dr. Edgar Savella, Medico-Legal Officer of the National Bureau
We are here for war.[10] Lauro was alleged to be responsible for shooting her father, Villar, twice
of InvestigationCaraga Region, conducted an autopsy of the bodies of the victims. Dr. Savella
and also for shooting her husband, Richardson.
testified that the gunshot wound sustained by Richardson on his abdomen was fatal and caused

Eyewitness Lowelito Villar (Lowelito), grandson of victim Villar, testified that on the evening of his death, the bullet having hit the sciatic artery on his right leg, as well as his vertebrae in the

the incident, he was in his home about fifteen (15) meters away from his grandparents house lumbar area.[15] Villar, on the other hand, died of multiple gunshot wounds to his chest and
abdomen.[16] Dr. Savella found no indication of self-defense or struggle-related injuries on both

Villar and Richardson.[17] Similarly, Lauro denied the charges made against him. Appellant maintains that on 12 May 2000,

he was in the home of his brother in Purok 4, Barobo, Surigao del Sur, helping the latter arrange

stones on which their billiard table was to be placed. At around 6:30 p.m., appellant allegedly

rested in the balcony of his brothers house with the latters wife and neighbor while his brother

prepared supper.[24]

Dr. Tomas Centino testified that he conducted the examination of the bodies of the victims who

were both clinically dead upon arrival at the DO Plaza Memorial Hospital.[18] He likewise opined On rebuttal, the prosecution presented two witnesses, the first of whom negated the claims of

that the respective gunshot wounds sustained by Villar and Richardson were fatal and the Lauro that he had never set foot in Barangay Amaga, Barobo, Surigao del Sur. According to

immediate cause of their death.[19] witness Restituto Basada, for about four (4) to five (5) years commencing in 1980, Lauro and his

family lived on his property in the said barangay. However, Lauro later fled as Basada filed a
To counter the prosecution, Togahan presented the defense of alibi. He testified that on 12 May
case against the former for stoning him.[25]
2000, at 6:30 p.m., he was in the home of his parents-in-law in Barangay Bahi, Barobo, Surigao

del Sur, with whom he and his family lived. He averred that he was playing with his children at The second rebuttal witness of the prosecution, Luzviminda Villar Sabaysabay, was the daughter

that time. Thereafter, he had supper with the entire family, retired with the household to the of victim Villar. She testified that in March and June 2001, they received letters from Togahan,

balcony from 7:00 to 9:00 p.m., and then went to sleep at 9:00 p.m.[20] The following day, requesting them to visit him in the provincial jail where he was then incarcerated. In Togahans

appellant maintains that he and his father-in-law repaired the gutter of their house.[21] On 14 second letter, she claimed, he requested a visit to reveal to them that Lauro was one of his

May 2000, appellant was allegedly fetched by his brother at 9:00 a.m. to visit their father who companions in killing Villar.[26]

was seriously ill in Barangay Tagongon, Barobo, Surigao del Sur. [22]

The RTC found appellants guilty of murder on both charges and sentenced each of them to suffer

To corroborate Togahans alibi, his father-in-law, Segundo Andalan, testified that on 12 May in each case the penalty of death and to indemnify the respective heirs of the victims in each case

2000, appellant helped him in repairing their house. Beginning around 6:30 p.m., the whole in the amounts of P50,000.00 as civil indemnity, P15,000.00 as moral damages, P15,000.00 as

family had dinner, took their rest and then went to bed. He asserted that appellant did not leave exemplary damages and costs.[27]

their house that night. Their repair work on the house allegedly continued the next day.

According to the witness, appellants sister fetched him on 14 May 2000, at around 1:00 p.m. as

their father was ill.[23]

With the death penalty imposed on appellants, the case was elevated to this Court on automatic witnesses and their testimonies are entitled to the highest respect and will not be disturbed on

review. However, pursuant to this Courts ruling in People v. Mateo,[28] the case was transferred appeal in the absence of clear showing that the trial court overlooked, misunderstood or

to the Court of Appeals. misapplied some facts or circumstances of weight and substance that would have affected the

result of the case. Having seen and heard the witnesses themselves and observed their behavior

On 5 May 2006, the appellate court rendered its decision affirming with modification appellants and manner of testifying, the trial court was in a better position to decide the question of

conviction. In downgrading the penalty from death to reclusion perpetua, the Court of Appeals credibility.[32]

held that the RTC erred in appreciating the generic aggravating circumstances of dwelling and

nighttime, both of which were not alleged in the Informations. [29] Thus, there being no mitigating After an exhaustive review of the records, we find no reason to deviate from the trial courts

or aggravating circumstance attending the commission of the crimes, the appellate court assessment of the credibility of the witnesses. The trial court did not err in giving credence to

imposed the penalty of reclusion perpetua upon appellants for each count of murder. The the testimony of the prosecution witnesses that they were able to identify appellants and their

dispositive portion of the said decision states: co-accused as perpetrators of the crime.

WHEREFORE, in view of the above disquisitions, the decision under review Mrs. Richardson, in recounting her horrifying experience in the hands of the appellants,
is hereby AFFIRMED with MODIFICATION that the penalty is reduced
to reclusion perpetua for each of the accused-appellants, and in line with categorically identified appellants as the perpetrators of the vicious crimes, viz:
recent jurisprudence the following amounts are awarded to the heirs of the
victims in each case, to wit: P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P25,000.00 as exemplary damages. xxxx

Court:
Conformably to the ruling in People vs. Mateo, We refrain from entering Few clarificatory question (sic) from the Court.
judgment therein. The Division Clerk of Court is directed to elevate the
records of this case to the Honorable Supreme Court for final disposition. Q In Exh. A-1, which is the question and answer of your sworn statement,
you said that you could not identify the culprit in this case?
SO ORDERED.[30] A Yes, sir.

Q But in the direct examination now, you were able to identify the suspects
as Emeldo Lauro and Henry Togahan?
A Yes, sir.

In their brief,[31] appellants challenge their conviction for murder, stressing that there is a great Q Why is it now that your testimony is now in conflict with that of your
sworn statement?
doubt as to the identities of the persons who perpetrated the crime. A Because they asked me a lot of questions. I was then depressed. I dont
(sic) know what to do. I lost my husband and when I was told to
go to Barobo, I was in a hurry to call my family in Pennsylvania,
sir.
The issue of whether or not appellants were in fact identified by the prosecution witnesses is a
Q The height of your husband is 62 inches?
question of credibility. It is well-settled that factual findings of the trial court on credibility of A Yes, sir.
 Q Who shot your father also (also)?
Q And he tried to grab the bonnet from the assailants? A Same guy, sir.
A Yes, sir.
x x x[33]
Q Was he able to grab the bonnets (sic)?
A One of them, sir.

Q Which one of them that (sic) your husband able to grab the bonnets Two other prosecution witnesses, Mrs. Villar and Lowelito, similarly identified appellants as the
(sic)?
A That guy. (Witness pointing to accused Henry Togahan) malefactors.[34]
Q Was the bonnet Togahan was wearing held by your husband out of his
face?
A Not all the way, sir. Appellants failed to show that the prosecution witnesses were prompted by any ill motive to

Q Until what part of the face of Henry Togahan? falsely testify or accused them of so grave a crime as murder. The Court adheres to the
A Up to the eyebrow, sir.
established rule that, in the absence of any evidence showing reason or motive for the witness
Q Before the incident, you had not met Henry Togahan?
to perjure, their testimony and identification of the assailant should be given full faith and
A No, sir.
credit.[35]
Q The other accused Emeldo Lauro, was he wearing also a bonnet at that
time?
A Yes, sir.
We cannot see ill-motive on the part of the prosecution witnesses, particularly Mrs. Villar and
Q Your husband was not able to pull the bonnet out from his face?
A No, sir. Mrs. Richardson. As widows of the victims, they have more reason to desire punishment for the

Q How could you identify Emeldo Lauro as the very person who was
responsible in killing your husband and your father?
A Because when I came here, when I saw his appearance and everything, I
remembered I heard his voice. Youre the one who said were
here for war. Dont you. You cant deny it.
real perpetrators of the crime. It is unnatural for a victims relative interested in vindicating the
crime to accuse somebody other than the real culprit.[36]Human nature tells us that the aggrieved
relatives would want the real killer punished for their loss, and not accept a mere scapegoat to

Q You can identify him? take the rap for the real malefactor.[37]
A Yes, sir, by his voice and his appearance.

Q As you said, it was Henry Togahan who pointed a gun to your head?
A Yes, sir. Concomitantly, witnesses need not know the names of the malefactors so long as they recognize

Q Is he the same person who shot to death also (sic) your husband? their faces. What is imperative is that the witnesses are positive as to the perpetrators physical
A No, sir.
identification from the witnesses own personal knowledge, as is obtaining in this case.[38] It is
Q Who was the person who shot your husband?
the natural reaction of victims of criminal violence to strive to see the appearance of their
A That guy there. The one in the middle. (Witness pointing to accused
Emeldo Lauro) assailants and to observe the manner in which the crime was committed. Most often, the face
Q That guy? and body movements of the assailant create an impression which cannot easily be erased from
A Yes, sir.
their memory.[39]
 not damage the essential integrity of the evidence in its material whole, nor should they reflect

Insofar as the alleged inconsistencies between the testimony of Mrs. Richardson and her sworn adversely on the witness credibility as they erase suspicion that the same was perjured.[44]

testimony on identifying the appellants are concerned, suffice it to say that the affidavits are
The trial court is correct in disregarding appellants defense of alibi and denial. For the defense
generally not prepared by the affiants themselves but by others, and affiants are only made to
of alibi to prosper, the accused must prove not only that he was at some other place at the time
sign them. Certain discrepancies between declarations made in the affidavit and those made at
of the commission of the crime but also that it was physically impossible for him to be at the locus
the witness stand seldom discredit the declarant.[40] Moreover, Mrs. Richardson was able to
delicti or within its immediate vicinity.[45] Apart from testifying with respect to the distance of
satisfactorily explain such inconsistency during her testimony.
their houses from that of the victims, appellants were unable to explain and show that it was

physically impossible for them to be at the scene of the crime.

Appellants likewise attack the seeming inconsistencies between the testimonies of Between the categorical statements of the prosecution witnesses, on one hand, and the bare

Mrs. Villar, Mrs. Richardson and Lowelito. They point to two alleged conflicts in those denial of appellants, on the other, the former must perforce prevail.[46] An affirmative testimony

testimonies which, to their mind, are fatal and discredit the reliability of the witnesses: the is far stronger than a negative testimony especially when it comes from the mouth of a credible

number of assailants and the identification of whom among the culprits shot the victims. These witness. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and

inconsistencies, in our view, are not sufficiently substantial to impair the veracity of the self-serving evidence undeserving of weight in law. They are considered with suspicion and

prosecutions evidence. always received with caution, not only because they are inherently weak and unreliable but also

because they are easily fabricated and concocted.[47]

While witnesses may differ in their recollections of an incident, it does not necessarily follow

from their disagreement that all of them should be disbelieved as liars and their testimonies The culpability of appellants and their co-accused is undeniable. Lauro was consistently

completely discarded as worthless.[41] As long as the mass of testimony jibes on material points, identified by the witnesses as the person responsible for shooting both victims. At the same time,

the slight clashing statements neither dilute the witnesses credibility nor the veracity of their the existence of conspiracy among the assailants is patent. Conspiracy has been deduced by the

testimony,[42] for indeed, such inconsistencies are but natural and even enhance credibility as Court in a case where three malefactors jointly lifted, carried and dumped their victim in a deep

these discrepancies indicate that the responses are honest and unrehearsed. [43] well filled with water head first and threw rocks inside the well to cover him;[48] by the

successive acts of three appellants in shooting, clubbing and piercing the eye of the
Witnesses cannot be expected to remember all the details of the harrowing event which
victim;[49] where one appellant put his arms around the body of the victim while his co-appellant
unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do
held the thighs of the victim and while they held him down, one poked and fired the gun at the

back of the head of the victim;[50] when two accused chased their victim into his house, kicked
open the door to enter and then shot him; [51] and when one malefactor hacked the victim and
two others chased after the latter to finish up the aggression they had started.[52]
In the instant case, by the concurrent acts of barging into the residence of the victims, holding
them at gunpoint and shooting and attacking the victims, Lauro, Togahan and their co-accused
are deemed to have agreed to commit the crime of murder. Each of their contributory acts
without semblance of desistance reflected their resolution to commit the crime.[53] From a legal
standpoint, there is conspiracy if, at the time of the commission of the offense, the appellants
had the same purpose and were united in its execution.[54]Direct proof of previous agreement to
commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in
which the offense was perpetrated, or inferred from the acts of the appellants themselves when
such acts point to a joint purpose and design, concerted action, and community of
intent.[55] Where conspiracy is established, the act of one is the act of all.[56]
We agree with the trial court that treachery qualified the killing of the victims. The essence of
treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself, thereby ensuring its commission
without risk to the aggressor, without the slightest provocation on the part of the victim. [57] In
the case at bar, four armed men entered the home of the innocent victims and together used this
advantage to facilitate their crime. Aggravating this was the fact that Villar was a 68-year old
man who could not have been reasonably able to put up a defense against the much younger and
armed men.
Thus, we reach the inescapable conclusion that the trial court and the Court of Appeals were
correct in finding appellants guilty of two counts of murder and affirm the imposition
of reclusion perpetua upon them for each of the murders committed. Likewise, in line with recent
jurisprudence,[58] we affirm the award of damages in favor of the heirs of the victims.
WHEREFORE, the 5 May 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00156-MIN
finding Henry Togahan and Emeldo Lauro guilty beyond reasonable doubt of two counts of
murder each, is AFFIRMED. They are sentenced to suffer the penalty of reclusion perpetua for
each count of murder and to pay jointly and severally the legal heirs of each victim P50,000.00
as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.
SO ORDERED.
G.R. No. 176609 December 18, 2008
FERNANDO ESTABAS MAHAWAN alias PADO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,1 petitioner
Fernando Estabas Mahawan alias Pado, seeks the reversal of the Decision2 of the Court of
Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, which affirmed in toto the Decision3 of the
Cebu City Regional Trial Court (RTC), Branch 10, in Criminal Case No. CBU-42385, dated 10
August 2004, finding him guilty of frustrated homicide.
The records of the case bear the following facts:
On 18 October 1996, an Information4 was filed before the RTC charging petitioner with
frustrated homicide. The accusatory portion of the information reads:
The undersigned Prosecutor I of Cebu City accuses FERNANDO ESTABAS MAHAWAN alias
"PADO" of the crime of FRUSTRATED HOMICIDE, committed as follows:
That on or about the 5th day of October, 1995, about 9:30 p.m., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said accused,
armed with a firearm, with deliberate intent and with intent to kill, did then and there
attack, assault and use personal violence upon the person of Diosdada Paradero, by
firing shots at said Diosdada Paradero, hitting her on the vital parts of her body,
thereby inflicting upon her the following physical injuries:
"GUNSHOT WOUND POINT OF ENTRY 3rd ICS (LEFT) MCL. NO POINT OF
EXIT, 4 PT. PERFORATION DESCENDING COLON, GRADE II LIVER INJURY
SEGMENT I, 1.5 CM. DIAPHRAGMATIC RENT (LEFT) INCISED WOUND
(LEFT) EAR LOBULE, (RIGHT) WRIST"
which injuries, under ordinary circumstance, would cause the death of said Diosdada
Paradero, thus performing all the acts of execution which would have produced the
crime of homicide, but which nevertheless did not produce it by reason of causes
independent of the will of the herein accused, that is, by the timely and able medical
assistance rendered to said Diosdada Paradero which prevented her death.
When arraigned on 22 April 1997, petitioner, assisted by his counsel de parte, pleaded "Not
guilty" to the charge.5Trial on the merits thereafter followed.
The prosecution presented as witnesses private complainant Diosdada S. Paradero (Paradero),
Dr. James Guardiario (Dr. Guardiario), and Police Chief Inspector Myrna Arreola (Inspector
Arreola). Their testimonies, woven together, produce the following narrative:
Paradero is a resident of B. Aranas Extension, Cebu City. Her house has two floors. She operates
a store on the ground floor, while the second floor is utilized by her and her family as sala and
bedrooms.
On 5 October 1996, at about 9:30 p.m., Paradero was tending her store when petitioner arrived
and asked her for a bottle of beer. She told petitioner that there was no more beer. When she
was about to open the refrigerator in the store to show petitioner that there was really no more
beer, petitioner sneaked inside the store. She closed the refrigerator and faced petitioner.
Suddenly, petitioner pulled out a gun (caliber .38 revolver) and shot her on the left chest. She
retreated and fell on the ground. As petitioner moved closer to her, she grabbed a kitchen knife
nearby to defend herself. Petitioner shot Paradero again but the bullet this time merely grazed
her left earlobe. Petitioner snatched the kitchen knife from her hand and fled the store.
Paradero’s sister and some neighbors brought her to Chong Hua Hospital where the gunshot
wound in her left chest was treated. She also underwent a surgical operation on her colon (large
intestine), liver and diaphragm as these vital organs were hit by the trajectory of the bullet. Dr.
Guardiario performed the said treatment and operation.
Meanwhile, petitioner was brought by the police authorities to the Cebu City Police Station for
investigation. Thereupon, a paraffin test was conducted on him by Inspector Arreola. The result
of the test showed there was gun powder residue on his right hand.
On 16 October 1996, Paradero was discharged from the Chong Hua Hospital.
On 3 February 1997, Paradero was confined and she underwent another operation on her colon
at the Don Vicente Sotto Medical Center. She was discharged therefrom on 14 February 1997. 6
The prosecution adduced documentary pieces of evidence to buttress the aforesaid allegations,
to wit: (1) medical certificate of Paradero issued by Dr. Guardiario (Exhibit A); 7 (2) medical
certificate of Paradero issued by the chief of Vicente Sotto Memorial Medical Center (Exhibit
B);8 (3) list of expenses and official receipts as regards Paradero’s treatment and confinement
for a gunshot wound (Exhibit C);9 (4) subpoena duces tecum issued by the RTC to Inspector
Arreola (Exhibit D);10 (5) physical science report on the paraffin test conducted on petitioner
(Exhibit E);11and (6) letter-request for paraffin test on petitioner (Exhibit F). 12
For its part, the defense presented the testimonies of petitioner and his friend/neighbor named
Antonio Artiaga (Artiaga) to refute the accusations against him. Petitioner disclaimed any
liability and invoked self-defense. His version of the incident, as corroborated by Artiaga on
some relevant points, is as follows:
On 5 October 1996, at around 9:30 p.m., petitioner went to Paradero’s store to buy cigarettes.
Upon arriving there, he saw Paradero standing near the store’s door. He asked Paradero if he
could buy cigarettes. Paradero replied in a loud voice that she did not have any stock of
cigarettes. Suddenly, Paradero, then holding a knife, went out of the store and approached him.
Paradero tried to stab him with the knife but he parried the thrust. He and Paradero grappled
for possession of the knife causing him injury on the left finger. He did let go of Paradero. The
latter, however, attacked him again with the knife. This time he was slightly hit by the knife on
the stomach. He drew his firearm and shot Paradero who, upon being hit by the bullet, slumped
on the ground. He took Paradero’s knife and went home. Subsequently, he proceeded to his
brother’s house where he called a policeman named Senior Police Officer 2 (SPO2) Quevedo. He
surrendered to SPO2 Quevedo upon the latter’s arrival at his (petitioner) brother’s house. SPO2
Quevedo brought him to the Cebu City Police Station where he was investigated. Afterwards, he
was taken to the Cebu City Medical Center for treatment of the injuries sustained during the
incident. Later, he learned that Paradero attacked him with a knife because Paradero had a
quarrel with his (petitioner) wife’s relative named Dindo Ruiz (Ruiz), who was allegedly stabbed
and killed by Paradero’s bata-bata (subordinates).13
The defense likewise proffered the medical certificate of petitioner to support his claims. The
medical certificate states that petitioner was treated for incised wounds on the left finger and
for abdominal abrasion.14
After trial, the RTC rendered a Decision convicting petitioner of frustrated homicide, sentencing
him to an indeterminate term of 6 years of prision correccional, as minimum, to 10 years
of prision mayor, as maximum. He was also ordered to pay Paradero the amounts of P110,000.00
as actual damages, P50,000.00 as exemplary damages, P9,000.00 as unearned income,
and P50,000.00 as attorney’s fees. The dispositive portion of the RTC Decision reads:
WHEREFORE, PREMISES CONSIDERED, this Court finds the accused FERNANDO
ESTABAS MAHAWAN, GUILTY of committing the crime of FRUSTRATED HOMICIDE.
He is hereby sentenced to suffer the indeterminate term of SIX (6) YEARS of PRISION
CORRECCIONAL as minimum to TEN (10) YEARS OF PRISION MAYOR as maximum
thereto.15
Petitioner filed a motion for reconsideration16 of the RTC Decision but this was
denied.17 Undaunted, he appealed to the Court of Appeals.
On 25 May 2006, the appellate court promulgated its Decision affirming in toto the RTC Decision.
Petitioner sought a reconsideration18 of the appellate court’s decision but it was denied.19 Thus,
petitioner lodged the instant petition before us assigning the following errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING IN ITS QUESTIONED
DECISION THAT ACCUSED-APPELLANT, PETITIONER HEREIN, FAILED TO FIRMLY
ESTABLISH THAT UNLAWFUL AGGRESSION PRECEDED HIS ATTACK ON THE
PRIVATE OFFENDED PARTY;
II.
COROLLARILY TO THE FOREGOING, BOTH THE HONORABLE COURT OF APPEALS
AND THE REGIONAL TRIAL COURT LIKEWISE ERRED IN CONCLUDING THAT THE
SECOND AND THIRD ELEMENTS OF SELF-DEFENSE ARE WANTING IN THE CASE AT
BAR;
III.
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN NOT FINDING THAT
THERE WAS NO INTENT TO KILL ON THE PART OF ACUSED-APPELLANT,
PETITIONER HEREIN;
IV.
BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT
ERRED IN NOT APPRECIATING THE "EQUIPOISE DOCTRINE" IN FAVOR OF THE
ACCUSED-APPELLANT, PETITIONER HEREIN;
V.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN TOTO THE AWARD
FOR DAMAGES GRANTED BY THE LOWER COURT;
VI.
THE HONORABLE COURT OF APPEALS ERRED IN DENYING ACCUSED-APPELLANT’S,
PETITIONER HEREIN, EARNEST MOTION FOR RECONSIDERATION WITHOUT
CLEARLY SETTING FORTH THE FACTS AND LAW AS BASIS FOR THE DENIAL
THEREOF.20
In the main, petitioner argues he should be acquitted because he merely acted in self-defense
when he shot Paradero during the incident.
It is axiomatic that where an accused pleads self-defense, he thereby admits authorship of the
crime. Accordingly, the burden of evidence is shifted to the accused who must then prove with
clear and convincing proof the following elements of self-defense: (1) unlawful aggression on
the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the
attack; and (3) lack of sufficient provocation on the part of the person defending himself.
Although all three elements must concur, self-defense must rest firstly on proof of unlawful
aggression on the part of the victim. If no unlawful aggression attributed to the victim is
established, there can be no self-defense, whether complete or incomplete. Unlawful aggression
is a condition sine qua non for the justifying circumstance of self-defense to apply.21
As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat
thereof in an imminent and immediate manner, which places the defendant’s life in actual peril.
There is an unlawful aggression on the part of the victim when he puts in actual or imminent
danger the life, limb, or right of the person invoking self-defense. There must be actual physical
force or actual use of weapon. To constitute unlawful aggression, the person attacked must be
confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent
and actual, not merely imaginary.22
Petitioner asserts that the findings of the RTC and the Court of Appeals are in contrast as to
whether there was unlawful aggression on the part of Paradero during the incident; that the
Court of Appeals erred in concluding that he failed to establish unlawful aggression on the part
of Paradero; that such conclusion contradicts the RTC’s finding that there was unlawful
aggression on the part of Paradero; and that the RTC’s view is more consistent with the facts and
evidence on record as compared with the disquisition of the Court of Appeals. 23
We shall first ascertain whether the findings of the RTC and the Court of Appeals are
contradictory as to whether petitioner failed to establish unlawful aggression on the part of
Paradero.
In support of his claim that the RTC found unlawful aggression on the part of Paradero,
petitioner quoted the following excerpts24 from the RTC Decision:
This Court cannot sustain private complainant’s claim that accused Mahawan, for a
flimsy reason that she had no more beer, would immediately enter her store and
shoot her with his firearm. x x x.
xxxx
Correspondingly, this Court would find Mahawan’s claim that it was the private
complainant who attacked him first, to be in accordance with human knowledge and
experience of mankind, more so, that accused has a corroborative witness in the
person of Mr. Antonio Artiaga, who testified that he saw private complainant holding
a knife and was attempting to stab the accused.
As can be gleaned from the foregoing, the RTC believed petitioner’s allegation that it was
Paradero who attacked first during the incident. It should be observed, however, that the RTC
does not specifically state or conclude that there was unlawful aggression on the part of
Paradero.
In the succeeding paragraph, the RTC categorically pronounced that there was insufficient
evidence to determine the unlawful aggressor during the incident, thus:
In the case at bar, there is insufficient evidence to determine who was the unlawful
aggressor from the start, which would qualify accused’s claim of self-defense. It was
thus held that:
"In the absence of evidence showing that the victim was the unlawful
aggressor at the start, the law will consider the aggression as reciprocal
between the combatants."25
The subsequent disposition of the RTC implies that although the prosecution failed to show by
sufficient evidence that it was petitioner who first attacked Paradero, the defense likewise failed
to establish that unlawful aggression on the part of Paradero preceded petitioner’s attack on
her. This, in effect, means that petitioner failed to discharge his burden of proving with clear and
convincing evidence that there was unlawful aggression on the part of Paradero. This conclusion
was evident from the fact that the RTC disregarded petitioner’s claim of self-defense and
convicted the latter of frustrated homicide.26
The seemingly confusing statements in the RTC Decision may be a mere result of inadvertence
in the drafting of the same. Nevertheless, petitioner cannot capitalize on such in arguing his case.
He cannot pluck and cite some portions of the RTC Decision which fit his defense and disregard
or omit those parts which are adverse to him. It should be borne in mind that the decision of the
court should be read and understood in its entirety.27
Given the foregoing, we rule that there is no contradiction between the findings of the RTC and
the Court of Appeals that petitioner failed to establish unlawful aggression on the part of
Paradero.
We shall now determine whether the findings of both courts that petitioner failed to establish
unlawful aggression on the part of Paradero were correct.
Paradero testified that on the night of the incident, petitioner went to her store and asked for a
bottle of beer. When she told petitioner that there was no more beer, the latter entered her store,
confronted her, and shot her with a gun. There is nothing in the foregoing which evinces
unlawful aggression on the part of Paradero. What is clear is that petitioner was the aggressor
during the incident. We have carefully examined the testimony of Paradero and found it to be
credible and trustworthy. She testified in a clear and consistent manner during the trial. She was
faithful and steadfast in recounting her ordeal despite the grueling cross-examination of the
defense. Besides, Paradero testified that petitioner was drunk at the time of the incident. She
also declared that she had known petitioner since 1988 and that the latter had, under the
influence of alcohol, assaulted several persons.28 These circumstances reinforce the allegation
petitioner’s propensity for harming people when he gets drunk.
On the other hand, petitioner narrated that when he went to Paradero’s store to buy cigarettes,
the latter replied in a loud voice that she did not have any stock of cigarettes. Paradero, then
holding a knife, suddenly went out of the store and attacked him. This testimony does not inspire
belief. It is inconsistent with logic and human experience that after Paradero told petitioner that
there were no more cigarettes, Paradero would thereafter immediately attack petitioner.
Precisely, there was no reason for Paradero to be angry and thereupon assault petitioner. It was
petitioner who had more reason to be angry and attack Paradero, because the latter had told
him in a loud voice that there were no more cigarettes. Petitioner alleged that Paradero attacked
him because she had a grudge against his wife’s relative named Dindo Ruiz. He also claimed that
Ruiz had been stabbed and killed by Paradero’s bata-bata (subordinates). These uncorroborated
allegations deserve scant consideration for being unsubstantiated and unsupported by
evidence.
The fact that petitioner sustained injuries on his hand and stomach, allegedly caused by
Paradero’s knife, does not signify that he was a victim of unlawful aggression. The medical
certificate presented by petitioner states that the latter sustained incised wounds on the 2nd and
5th fingers measuring 2 centimeters and abdominal abrasion measuring 2.5 centimeters.
Petitioner was discharged on the same day he was treated in the hospital. 29 It is clear from the
foregoing that the injuries he sustained were not serious or severe. The superficiality of the
injuries was not indication that his life and limb were in actual peril.30
In stark contrast, Paradero sustained a gunshot wound on the left chest. The trajectory of the
bullet hit and seriously injured her liver, colon and diaphragm. This caused her to undergo two
surgical operations. She also sustained wounds on her left forearm, right wrist and left earlobe.
Based on the foregoing, it is difficult to believe that Paradero was the unlawful aggressor. The
gravity, location, and number of wounds she sustained belie self-defense on petitioner’s part.31
Hence, the RTC and the Court of Appeals were correct in concluding that petitioner failed to
establish unlawful aggression on the part of Paradero.
Apropos the second issue, petitioner maintains that the second element of self-defense, which is
reasonable necessity of the means employed to prevent or repel the attack, was present in the
instant case; that although he was younger, taller, and heavier than Paradero, it does not mean
that there was no reasonable necessity on his part to shoot Paradero; that the RTC and the Court
of Appeals overlooked the fact that he was forced to shoot Paradero because the latter had
already stabbed him twice and thus caused a wound on his belly measuring 4 centimeters; that
people react differently to a given situation, and that he merely acted under the instinct of self-
preservation; that any person placed in his situation during the incident would do the same thing
he did and would not risk the chance of being stabbed for the third time or expose himself to
unnecessary danger; and that it was unfair to judge his act as totally and morally wrong.
Further, petitioner avers that the third element of self-defense, which is lack of sufficient
provocation on the part of the person making the defense, was present in the case at bar; and
that he did not commit any act or omission which provoked Paradero to attack him.32
The second element of self-defense requires that the means employed by the person defending
himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim.
The reasonableness of the means employed may take into account the weapons, the physical
condition of the parties and other circumstances showing that there is a rational equivalence
between the means of attack and the defense.33
In the case at bar, there was no reason or necessity for petitioner to shoot Paradero with a gun.
Paradero was merely tending her store and did not attack or place in danger the life of petitioner
during the incident. Even if we are to adopt petitioner’s version of the incident, his act of
shooting Paradero would not also be a reasonable and necessary means of repelling the
aggression allegedly initiated by Paradero. As aptly observed by the RTC:
Indubitably, considering the age, height, built and sex of the accused and the victim,
the accused was 31 years old and about 5’9 to 5’10 in height and heavily built, while
the victim is frail and about 5’1, more or less, in height, the struggle for the possession
of the knife would be over in a few seconds and accused would be able to disarm the
victim. There is, therefore, no immediate need for the accused to fire his gun to stop
the victim from attacking him. Proof of this is the knife presented by the accused in
court which he had allegedly confiscated from the private complainant.34
In addition, petitioner was armed with a gun while Paradero supposedly held a knife. Petitioner
should have fired a warning shot first to ward off Paradero or, if the latter persisted in attacking,
fired a shot at a non-vital portion of her body in order to disable her instead of shooting her
instantly in the chest. Further, when Paradero allegedly approached and tried to stab him,
petitioner was not trapped or cornered in a specific area such that he had no way out. He testified
that he and Paradero were outside the store during the incident. He could have run away and
called the neighbors or police for help. In short, petitioner had other less harmful options than
to shoot Paradero. Indeed, petitioner’s act failed to pass the test of reasonableness of the means
employed in preventing or repelling an unlawful aggression.
As we earlier found, petitioner shot Paradero when she told him there was no more stock of
cigarettes. Paradero then was forced to grab a knife to defend herself. Clearly, petitioner
provoked Paradero and not the other way around. Hence, the element of lack of sufficient
provocation on the part of the person making the defense is also wanting in the present case.
Self-defense is inherently a weak defense because, as experience has demonstrated, it is easy to
fabricate and difficult to prove.35 Thus, for this defense to prosper, the accused must prove with
clear and convincing evidence the elements of self-defense. He must rely on the strength of his
own evidence and not on the weakness of that of the prosecution. Even if the evidence of the
prosecution is weak, it cannot be disbelieved if the accused admitted responsibility for the crime
charged.36 In the case before us, petitioner failed to prove with plausible evidence all the
elements of self-defense. Hence, his plea of self-defense must fail.
Regarding the third issue, petitioner posits that the fact that he shot Paradero only once showed
that he had no intent to kill her. There would have been intent to kill on his part if he shot
Paradero several times, but such was not the case. Further, when Paradero fell on the ground,
he immediately left the scene. He could have finished her off at that moment if he really intended
to kill her.37
An essential element of homicide, whether in its consummated, frustrated or attempted stage,
is intent of the offender to kill the victim immediately before or simultaneously with the
infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct
or circumstantial evidence, while general criminal intent is presumed from the commission of a
felony by dolo.38
Evidence to prove intent to kill in crimes against persons may consist, inter alia, of the means
used by the malefactors; the nature, location and number of wounds sustained by the victim; the
conduct of the malefactors before, at the time of, or immediately after the killing of the victim,
the circumstances under which the crime was committed; and the motive of the accused. 39
In the instant case, petitioner used a lethal weapon, i.e., a gun, in assaulting Paradero. He shot
Paradero twice at a distance of two meters.40 The bullet from the first shot hit Paradero’s left
chest. The trajectory of the bullet hit Paradero’s vital organs such as the liver and colon. The
bullet from the second shot hit Paradero’s left earlobe. Moreover, Dr. Guardiario testified that
the injury on Paradero’s colon was fatal and would have caused her death were it not for the
timely medical attention given her.41 The seriousness of Paradero’s injuries was also shown by
the fact that she was confined and operated on twice in different hospitals for the wound
sustained in the colon. Verily, the foregoing circumstances clearly manifest intent to kill on the
part of petitioner.
Even assuming, arguendo, that Paradero sustained only one gunshot wound, such does not
negate intent to kill on the part of petitioner. The number of wounds inflicted is not the sole
consideration in proving intent to kill.42 As earlier mentioned, the means used by the malefactors
and the nature and location of the wounds also manifest intent to kill. Petitioner’s use of a gun
in shooting Paradero on the chest and the fact that the bullet hit some of her vital organs of
Paradero clearly indicate intent to kill.
With regard to the fourth issue, petitioner claims that his testimony was corroborated by
Artiaga, while the testimony of Paradero was uncorroborated. As such, his testimony deserves
credence and the equipoise doctrine should be applied in his favor. 43
Credibility is weighed not by the number of witnesses but by the quality of their
testimonies.44 Witnesses are to be weighed, not numbered. Evidence is assessed in terms of
quality and not quantity. Therefore, it is not uncommon to reach a conclusion of guilt on the
basis of the testimony of a lone witness. For although the number of witnesses may be
considered a factor in the appreciation of evidence, preponderance is not necessarily on the
greatest number, and conviction can still be had on the basis of the credible and positive
testimony of a single witness.45
We have earlier found the sole testimony of Paradero to be more credible than that of petitioner,
even if the latter’s testimony was corroborated by Artiaga on some relevant points. Paradero’s
account of the incident was clear and consistent. On the other hand, petitioner’s narration of the
incident, though corroborated by Artiaga, hardly inspires belief, as it does not conform to reason
and human experience. Further, the RTC and CA upheld the sole testimony of Paradero over that
of petitioner. They concluded that petitioner failed to prove his claim of self-defense despite the
fact that her testimony was corroborated by Artiaga. Basic is the rule that factual findings of the
trial court deserve great weight and respect especially when affirmed by the appellate
court.46 We found no compelling reason to disturb the ruling of both courts. Given the foregoing,
Paradero’s testimony outweighs the testimonies of petitioner and Artiaga.
Petitioner’s reliance on the equipoise rule is misplaced. Under the equipoise rule, where the
evidence on an issue of fact is in equipoise (evenly balanced), or there is doubt on which side
the evidence preponderates, the party having the burden of proof loses. 47 The equipoise rule
finds application if the inculpatory facts and circumstances are capable of two or more
explanations -- one of which is consistent with the innocence of the accused and the other with
his guilt -- in which case the evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction.48
In the instant case, there are no inculpatory facts and circumstances which are capable of two
or more explanations because petitioner has already admitted shooting Paradero. In other
words, there is no more issue as to the innocence or guilt of petitioner. What is left to be resolved
is whether he can be relieved of liability by virtue of the self-defense he pleaded. We have earlier
held that petitioner failed to discharge his burden of proving with clear and convincing evidence
the presence of the elements of self-defense. Thus, the equipoise rule does not apply to this case.
As regards the fifth issue, petitioner avers that the award of actual damages to Paradero in the
amount of P110,000.00 was unwarranted, because her name was not indicated in the hospital
and medication receipts presented by the prosecution; that the grant of exemplary damages was
not proper because there was unlawful aggression on the part of Paradero; that the award
of P9,000.00 as unearned income was inappropriate, as there was no basis or evidence to
support the same; and that the award of attorney’s fees amounting to P50,000.00 was improper
because there was unlawful aggression on the part of Paradero.49
To be entitled to an award of actual damages, there must be competent proof of the actual
amount of loss. Credence can only be given to those that are supported by receipts. 50
Most of the receipts on record51 were issued in Paradero’s name. Although her name was not
stated in the other receipts, it appears, however, that these receipts were issued to Paradero’s
relatives and that the items covered by the same were purchased for Paradero. Also, it is a fact
that some pharmacy outlets do not specify the name of the purchaser in the receipts they issue,
but only indicate the items sold and their corresponding amounts.
The receipts on record show that Paradero incurred expenses in the amount of P22,426.06. She
claimed other expenses, but they are not supported by receipts or other competent proofs. As
such, the amount of actual damages awarded by the RTC and the Court of Appeals should be
reduced from P110,000.00 to P22,426.06. However, we have held that when actual damages
proven by receipts amount to less than P25,000.00, such as in the present case, the award of
temperate damages amounting to P25,000.00 is justified in lieu of actual damages for a lesser
amount.52 This is based on a sound reasoning that it would be anomalous and unfair that the
victim who tried but succeeded in proving actual damages of less than P25,000.00 only would
be in a worse situation than another who might have presented no receipts at all but would be
entitled to P25,000.00 temperate damages.53Thus, instead of P22,426.06, the amount
of P25,000.00 as temperate damages should be awarded to Paradero.
We agree with petitioner that Paradero is not entitled to exemplary damages, but we differ in
his reason for the disallowance thereof. Exemplary damages may be awarded only when one or
more aggravating/qualifying circumstances are alleged in the information and proved during
the trial.54 In the instant case, no aggravating/qualifying circumstance was alleged in the
information. Hence, the award of exemplary damages by the RTC and the Court of Appeals is
unwarranted.
The general rule is that documentary evidence should be presented to substantiate a claim for
damages for loss of earning capacity. As an exception, damages may be awarded in the absence
of documentary evidence, provided that there is testimony that the victim was either (1) self-
employed and earning less than the minimum wage under current labor laws, and judicial notice
may be taken of the fact that in victim’s line of work, no documentary evidence is available; or
(2) employed as a daily wage worker earning less than the minimum wage under current labor
laws.55 In the case under consideration, no documentary evidence was adduced to support
Paradero’s claim for loss of earning capacity. Nonetheless, Paradero testified that she derived
her income from operating a small sari-sari store, which she also owned. She also stated that she
earned less than P50.00 a day from selling goods in her sari-sari store.56 It is a fact and commonly
recognized in our country that owners or operators of small sari-sari store, such as Paradero, do
not issue official receipts since the quantity of the items being sold is minimal and these are sold
cheap. Thus, Paradero is entitled to indemnity for loss of earning capacity. As to its proper
amount, we agree with the RTC and the Court of Appeals that Paradero is entitled to P9,000.00.
Records57 show that Paradero underwent treatment and medication, which incapacitated her
from working in her store for a period of 6 months. Hence, the computation is P50.00 multiplied
by 180 days or 6 months. Consequently, the amount which she could have earned during the
said period was P9,000.00.
Likewise the award of attorney’s fees in the amount of P50,000.00 is in order 58 because the
record shows that Paradero incurred such expenses in hiring a private prosecutor for the instant
case.59
In his last assigned error, petitioner insists that the Court of Appeals erred in denying his motion
for reconsideration without setting forth the factual and legal bases for the denial.
Art. VIII, Sec. 14 of the Constitution provides that "no petition for review or motion for
reconsideration of a decision of the court shall be refused due course or denied without
stating the legal basis therefor." This requirement was fully complied with when the Court of
Appeals, in denying reconsideration of its decision, stated in its resolution that it found no
reason to change its ruling, because petitioner had not raised anything new.60 Thus, its
resolution denying petitioner’s motion for reconsideration states:
For consideration is accused-appellant’s motion for reconsideration of this Court’s
decision promulgated on May 25, 2006. Acting on the motion filed by the accused-
appellant, and considering that the same discloses no substantial argument or cogent
reason to warrant a reconsideration or modification of our assailed decision which
has already considered, if not squarely ruled upon, the arguments herein presented,
we resolve to deny the motion.
WHEREFORE, there being no cogent reason for us to depart from our questioned
findings, we hereby DENY the aforementioned motion.61
We shall now determine the propriety of petitioner’s conviction for frustrated homicide and the
corresponding prison term imposed.
We have held that the crime of frustrated homicide is committed if the following are present:
(1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his
assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely
medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of
the Revised Penal Code is present.62
All of the aforementioned are present and were duly establish in the case at bar. First,
petitioner’s use of a gun and his act of firing it twice from a distance of 2 meters towards
Paradero clearly indicated his intent to kill her. Second, vital organs of Paradero like her liver
and colon were hit by the trajectory of the bullet. Dr. Guardiario testified that the injury on
Paradero’s colon was fatal and would have caused her death were it not for the timely medical
attention given her. And third, none of the qualifying circumstances for murder was alleged in
the information. Thus, the RTC and the Court of Appeals were correct in convicting petitioner of
frustrated homicide.
Petitioner, nonetheless, alleges that he is entitled to the mitigating circumstance of voluntary
surrender. We agree on this point with petitioner. For voluntary surrender to be appreciated as
a mitigating circumstance, the following requisites must concur: (1) that the offender has not
been actually arrested; (2) that the offender surrendered himself to a person in authority; and
(3) that the surrender was voluntary.63 The foregoing requisites are present in the case before
us. Petitioner has not been actually arrested. After the incident, he immediately went to his
brother’s house and thereupon called via telephone a policeman named SPO2 Quevedo. He told
SPO2 Quevedo that he wanted to surrender. Upon the latter’s arrival at the house of petitioner’s
brother, petitioner turned himself in and, thereafter, he was brought to the police station. 64 The
prosecution did not rebut the foregoing facts.
The penalty for frustrated homicide, pursuant to Article 250 of the Revised Penal Code, is prision
mayor. There being one mitigating circumstance and no aggravating circumstance, pursuant to
Article 64(2) of the Revised Penal Code, the minimum period of prision mayor should be
imposed. Applying the Indeterminate Sentence Law, the range of the penalty is 4 years, 2 months
and 1 day to 6 years of prision correccional as minimum, to 6 years and 1 day to 8 years of prision
mayor as maximum. Thus, the RTC and the Court of Appeals erred in sentencing petitioner to a
term of 6 years of prision correccional as minimum to 10 years of prision mayor as maximum.
The proper penalty to be imposed on petitioner is 6 years of prision correccional, as minimum
to 8 years of prision mayor, as maximum.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006,
is hereby AFFIRMED with the following MODIFICATIONS: (1) petitioner Fernando Estabas
Mahawan is sentenced to an indeterminate sentence of 6 years of prision correccional, as
minimum to 8 years of prision mayor, as maximum; (2) the amount of P25,000.00 as temperate
damages is awarded to Diosdada Pardero in lieu of the actual damages; and (3) the award of
exemplary damages in the amount of P50,000.00 is deleted.
SO ORDERED.