FIRST DIVISION
[G.R. No. 117970.
July 28, 1998]
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. ULYSSES M. CAWALING, ERNESTO TUMBAGAHAN, RICARDO DE
LOS SANTOS, and HILARIO CAJILO, accused-appellants.
D E C I S I O N
PANGANIBAN, J.:
It is axiomatic that
once an accused-appellant admits killing the victim, he bears the burden of
establishing the presence of any circumstance like self-defense, performance of
a lawful duty or, for that matter, double jeopardy, which may relieve him of
responsibility, or which may mitigate his criminal liability.[1] If he
fails to discharge this burden, his conviction becomes inevitable. In this Decision, we also reiterate the
following doctrines: (1) the regional trial court, not the Sandiganbayan, has
jurisdiction over informations for murder committed by public officers,
including a town mayor; (2) the assessment of trial courts on the credibility
of witnesses and their testimonies deserve great respect; (3) the equipoise
rule cannot be invoked where the evidence of the prosecution is overwhelming;
(4) alibi cannot be believed in the face of credible testimony identifying the
appellants; and (5) conspiracy may be proven by circumstantial evidence.
The Case
Before
us is an appeal from the 34-page Decision[2] dated October 21, 1994, promulgated by the Regional
Trial Court of Romblon in Criminal Case No. OD-269. Convicted of murder were
former Mayor Ulysses M. Cawaling and Policemen Ernesto Tumbagahan,[3] Ricardo De los Santos and
Hilario Cajilo.
Prior to the
institution of the criminal case against all the appellants, an administrative
case[4] had been
filed before the National Police Commission, in which Policemen Ernesto
Tumbagahan, Ricardo De los Santos, Hilario Cajilo (three of herein appellants)
and Andres Fontamillas were charged by Nelson Ilisan[5] with the
killing of his brother Ronie[6] Ilisan. On
April 6, 1986, Adjudication Board No. 14[7] rendered
its Decision which found Tumbagahan, De los Santos, Cajilo and Fontamillas
guilty of grave misconduct and ordered their dismissal from the service with
prejudice.[8] On June
26, 1986, the Board issued a resolution,[9] dismissing
the respondents’ motion for reconsideration for lack of merit.
Subsequently, on
June 4, 1987, Second Assistant Provincial Fiscal Alexander Mortel filed, before
the Regional Trial Court (RTC) of Odiongan, Romblon,[10] an
Information for murder[11] against
the appellants and Andres Fontamillas.
The accusatory portion reads:
“That on or about the 4th day of
December 1982, at around 9:00 o’clock in the evening, in the Poblacion,
[M]unicipality of San Jose, [P]rovince of Romblon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, with intent to kill,
conspiring, confederating and mutually helping one another, did then and there,
by means of treachery and with evident premeditation and taking advantage of
their superior strenght [sic] willfully, unlawfully and feloniously attack,
assault and shoot RONIE ILISAN, with the use of firearms, inflicting upon the
latter multiple mortal injuries in different parts of his body which were the
direct and immediate cause of his death.”
Accused
Tumbagahan, De los Santos, Cajilo and Fontamillas, with the assistance of their
lawyers Atty. Abelardo V. Calsado and Juanito Dimaano, pleaded not guilty when
arraigned on February 15, 1988;[12] while
Accused Cawaling, assisted by Counsel Jovencio Q. Mayor, entered a plea of not
guilty on March 16, 1988.[13]
After due trial,[14] the court
a quo[15] rendered
its Decision dated October 21, 1994,[16] the
decretal portion of which reads:
“WHEREFORE, this Court finds the
accused (1) ULYSSES M. CAWALING, (2) ERNESTO TUMBAGAHAN, (3) RICARDO DELOS
SANTOS, (4) HILARIO CAJILO, AND (5) ANDRES FONTAMILLAS GUILTY beyond reasonable
doubt of the crime of MURDER under the Information, dated June 4, 1987, and
sentences each of them to suffer the penalty of reclusion perpetua, with
the accessory penalties of the law.
The accused, jointly and severally,
are ORDERED to pay Nelson Elisan the sum of P6,000.00 as actual damages
and the heirs of the deceased Ronie Elisan the sums of P116,666.66 by
way of lost earnings and P50,000.00 as indemnity for death, without
subsidiary imprisonment in case of insolvency, and to pay the costs.
The bail bonds of all the accused
are ORDERED CANCELLED and all said accused are ORDERED immediately confined in
jail.
The slug (Exh. A); the .38 caliber
revolver (with 3 empty shells and 3 live bullets) (Exh. G); and the slug of
bullet (Exh. H) are confiscated in favor of the government.
After the judgment has become
final, the Officer-in-Charge, Office of the Clerk of Court, this Court, is
ordered to deliver and deposit the foregoing Exhibits A, F, G and H, inclusive,
to the Provincial Director, PNP, of the Province of Romblon properly
receipted. Thereafter, the receipt must
be attached to the record of the case and shall form part of the record.
The period of preventive
imprisonment the accused had undergone shall be credited in their favor to its
full extent pursuant to Article 29 of the Revised Penal Code, as amended.
The case against co-accused ALEX
BATUIGAS who is at large is ORDERED ARCHIVED pending his arrest.”[17]
Hence, this
appeal.[18]
The Facts
Version of the Prosecution
The trial court
gives this summary of the facts as viewed by the prosecution witnesses:
“The killing occurred on December
4, 1982 at around 9:00 o’clock in the evening at the ricefield of Poblacion,
San Jose, Romblon when the bright moon was already above the sea at an angle of
about 45 degrees, or if it was daytime, it was about 9:00 o’clock in the
morning (Imelda Elisan Tumbagahon, on direct examination, tsn, Jan. 17, 1989,
p. 5, and on cross examination, tsn, April 18, 1989, p. 22).
On December 4, 1982, about 8:00
o’clock or 8:30 o’clock in the evening, Vicente Elisan and his elder brother Ronie
Elisan, the victim, were drinking tuba at C & J-4 Kitchenette of co-accused
Andres Fontamillas in Poblacion, San Jose, Romblon. When they stood up to go home, Luz Venus, the wife of Diosdado
Venus, told them not to go out because the accused were watching them outside
about three (3) meters from the restaurant.
Diosdado Venus accompanied them upon their request and they went out and
walked towards home. About a hundred meters
from the restaurant, the six (6) accused, that is, Mayor Cawaling, the four (4)
policemen, namely, Hilario Cajilo, Andres Fontamillas, Ernesto Tumbagahan and
Ricardo delos Santos, and civilian Alex Batuigas, the mayor’s brother-in-law,
flashlighted them and Diosdado Venus ran going back. The two (2) brothers also ran towards home to the house of their
elder sister Imelda Elisan Tumbagahon.
Co-accused Andres Fontamillas and Hilario Cajilo blocked them on the
gate of the fence of their sister’s house.
Ronie Elisan ran towards the ricefield.
The accused were chasing them.
Vicente Elisan saw his brother Ronie f[a]ll down on the ricefield while
he ran towards the bushes and la[y] on the ground. Ronie Elisan rose up by kneeling and raising his two (2) hands. All the six (6) accused approached him with
their flashlights and shot him. Ronie
fell down about twenty (20) meters from the bushes where Vicente Elisan hid
behind the coconut tree. Co-accused
Cawaling said [“]you left him, he is already dead.[“] Mayor Cawaling was armed with .45 caliber, policemen Andres
Fontamillas and Hilario Cajilo were both with armalites, Ernesto Tumbagahan and
Ricardo delos Santos were both with .38 caliber and so with civilian Alex
Batuigas. They left towards the house
of Mayor Cawaling. After they were
gone, Vicente Elisan ran towards the house of his older brother Nelson
Elisan. Upon seeing him, Vicente told
Nelson that Ronie was already dead.
Nelson said nothing. While they were
there, elder sister Imelda Elisan Tumbagahon, who was crying came. She said: “Manong, patay ron si Ronie.” (Brother, Ronie is already dead). Nelson said [“]do not be noisy; they might
come back and kill all of us.[“] Imelda
stopped crying.
After a while, brothers Nelson and
Vicente Elisan went to the house of barangay captain Aldolfo Tumbagahon. The three (3) went to the townhall and
called the police but there was none there.
Going to the house of the Chief of Police Oscar Montero, they were told
by his wife that Commander Montero was in the house of Mayor Cawaling. They proceeded to the place where Ronie
Elisan was shot. The cadaver was
brought to the house of Nelson Elisan.
Vicente Elisan found an empty shell of a .45 caliber about three (3)
arm’s length from the body of the victim.
They surrendered it to the Napolcom.”[19]
Dr. Blandino C.
Flores described the gunshot wounds of the victim as follows:
“Gunshot Wounds:
1. Shoulder:
Gun shot wound ½ x ½ inch in
diameter shoulder right 2 inches from the neck with contussion [sic] collar
s[u]rrounding the wound.
2. Right
Axilla:
Gun shot wound ¼ x ¼ inch in
diameter, 2 inches below the right nipple with contussion [sic] collar
s[u]rrounding the wound.
3. Left
Axilla:
Exit of the gun shot wound from the
right axilla, measuring ½ x ½ inch with edges everted, one inch below the
axilla and one inch below the level of the nipple.
4. Back:
Gun shot wound measuring ¼ x ¼
inch, along the vertebral column, right at the level of the 10th ribs with
contussion [sic]collar.
5. Leg,
Left:
Gun shot wound measuring ¼ x ¼
anterior aspect upper third leg with contussion [sic] collar, with the exit ½ x
½ posterior aspect upper third leg, left.”[20]
Based on the
death certificate (Exhibit E) issued by Dr. Flores, Ronie Ilisan died of
“severe hemorrhage and gun shot wo[unds].”[21]
Version of the Defense
Appellant
Cawaling, in his 47-page Brief,[22] presented
his own narration of the incident as follows:
“At around 7:00 in the evening of
December 4, 1982, Ulysses Cawaling, then the mayor of the [M]unicipality of San
Jose in the [P]rovince of Romblon, arrived aboard a hired motorized boat from
Manila in the seashore of San Jose.
From the seashore, he immediately proceeded to his home. At around 7:30 in the evening, Cawaling went
to the municipal hall to check on administrative matters that piled up in the
course of his trip to Manila. He also
went inside the police station (located inside the municipal building) to be
apprised of any developments, after
which he went out and joined Pfc. Tumbagahan and Pfc.
Cajilo who were standing near the flagpole in front of the municipal
building. The three engaged in a
conversation. Cawaling learned that the
two police officers were the ones assigned for patrol/alert for that
night. The three of them went inside
the INP office and there Cawaling informed the two policemen that he received
information from reliable persons that certain persons were plotting to kill
him and a member of the town’s police force.
It is to be noted that this occurred at the height of the communist
insurgency and political violence in the countryside in the early 80’s. Hence, such information was taken very
seriously, having been relayed by sources independent of each other.
Cawaling, as town chief then
empowered with supervisory authority over the local police, accompanied Pfc.
Tumbagahan and Pfc. Cajilo in conducting patrol and surveillance operations
around the small municipality. He
usually did this as routine since Romblon was then plagued with political
assassinations and armed conflict. On their
way to the seashore, they passed by C & J-4 Kitchenette, and chanced upon Ronnie
Ilisan and his brother Vicente Ilisan drinking liquor and discussing in very
loud voices. They stopped right in the
front of the restaurant and there they heard Ronnie Ilisan state in a every
loud voice that he will kill a person that night. Inside the restaurant, without the knowledge then of Cawaling and
the two police officers, witness Gil Palacio, who was buying cigarettes and Luz
Venus, the cook/server of the restaurant, saw Ronnie Ilisan, very drunk,
brandishing in the air a .38 caliber Smith and Wesson revolver with a
protruding screw.
Initially dismissing Ronnie
Ilisan’s statement as just another hollow swagger of an intoxicated person
(“salitang lasing”), Cawaling and the two policemen proceeded on their
way. After the patrol, they returned to
the municipal building and stationed themselves in front. At around 8:30 in the evening, Ronnie Elisan
passed by the municipal hall walking towards the direction of the house of
Nelson Ilisan, another brother, and shouted the challenge, “gawas ang maisog”,
meaning THOSE WHO ARE BRAVE, COME OUT.
Cawaling and the two police officers again brushed aside [the] challenge
as just another foolish drunken revelry [o]n the part of Ronnie Ilisan, a
well-known troublemaker in the small municipality.
A few moments later, after Ronie
Ilisan had passed by, they distinctly heard a gunshot and hysterical female
voices shouting, “pulis, tabang” meaning POLICE! HELP! four times. Impelled by the call of duty, Cawaling and
the two policemen immediately ran in the direction of the gunshot and the
desperate female voices until they reached the house of Nelson Ilisan in San
Jose Street. At this point, they saw
Ronnie Ilisan holding a .38 caliber revolver.
They also saw Vicente Ilisan, Francisco Tesnado, Fe Ilisan, the wife of
Nelson and Delma Ilisan, the wife of Vicente, the latter two being the same
persons who cried “pulis, tabang” four times. Cawaling then told Ronnie to surrender his gun but the latter
responded by pointing the gun at Cawaling and pulling the trigger.
At the precise moment that the gun
fired, Cawaling warned the two policemen to drop to the ground by shouting “dapa”. Fortunately, Cawaling was not hit. Ronnie Ilisan then turned around and ran
towards the church. The two policemen
gave chase. Cawaling, still shaken and
trembling after the mischance was initially left behind but followed
shortly. When Ronnie Ilisan reached the
church, he turned around and again fired at the pursuing Pfc. Cajilo. Fortunately, the gun misfired. When they finally reached the ricefield,
Pfc. Cajilo fired two (2) warning shots in the air for Ronnie to
surrender. Ronnie responded by firing
once again at Pfc. Tumbagahan but failed to hit the latter. At that instance, Pfc. Cajilo counter-fired
at Ronnie Ilisan hitting him. Pfc.
Tumbagahan also fired his weapon in the heat of exchange and also hit Ronnie
Ilisan. As a result of the gunshot
wounds, Ronnie Ilisan later on succumbed.
Pfc. Tumbagahan picked up the gun
still in the hand of the dead Ronnie
Ilisan and gave it to Pfc. Cajilo. The
three, Cawaling, who subsequently caught up with them after the incident, and
the two police officers, then proceeded to the police station located in the
municipal building to formally report the incident in their station blotter.”[23]
The “Brief for
All of the Accused-Appellants” filed by Atty. Napoleon U.
Galit and the
“Brief for Appellants Ernesto Tumbagahan and Hilario Cajilo” submitted by Atty. Joselito
R. Enriquez merely repeated the facts as narrated by the trial court.
Ruling of the Trial Court
Finding the
prosecution witnesses and their testimonies credible, the court a quo
convicted the appellants. The killing
was qualified to murder because of the aggravating circumstances of abuse of
superior strength and treachery. The
trial court ruled that there was a notorious inequality of forces between the
victim and his assailants, as the latter were greater in number and armed with
guns. It further ruled that abuse of
superior strength absorbed treachery, as it ratiocinated:
“‘Certain cases,’ an authority
wrote, ‘involving the killing of helpless victim by assailants superior to them
in arms or numbers, or victims who were overpowered before being killed, were
decided on the theory that the killing was treacherous, when perhaps the
correct qualifying circumstance would be abuse of superiority. In these cases the attack was not sudden nor
unexpected and the element of surprise was lacking.’ (Id., I Aquino, pp.
423-424). In the instant case, we
earlier ruled that the qualifying treachery should be considered as an
exception to the general rule on treachery because it was not present at the
inception of the attack. The killing
was not sudden nor unexpected and the element of surprise was lacking. It is for this reason that we hold that
alevosia should be deemed absorbed or included in abuse of superiority. Even assuming ex-gratia argumenti that it
should be the other way around, the situation will not be of help, penaltywise,
to the accused.”[24]
The defenses raised
by the appellants were dismissed and their witnesses declared unworthy of
belief for the following reasons:
1. It
was highly improbable that Defense Witness Tesnado would not tell his wife
(Dory) and Bebelinia Ilisan Sacapaño about the incident he had allegedly
witnessed; more so when Sacapaño was the victim’s first cousin.
2. The
spot report prepared by Station Commander Oscar M. Montero, the testimonies of
Cajilo and Tumbagahan and the medical findings of Dr. Flores contradicted one
another on the following details: the caliber of the gun used in shooting the
victim, the wounds inflicted and the whereabouts of Cawaling during the
shoot-out.
3. Cawaling
and his men, armed with guns, could have immediately disarmed the victim at the
initial encounter. The court could not
understand why the victim was able to fire his gun, run, then stop and again
fire his gun, without being caught.
4. The
positive identification made by the prosecution witnesses prevails over the
alibi posed by De los Santos and Fontamillas, a defense that was not
corroborated by any other witness.
5. The
.38 caliber revolver, allegedly owned by the victim, was in fact owned and used
by Alex Batuigas.
6. The
defense presented a photo and a sketch to prove that Imelda Ilisan Tumabagahan
had an obstructed view of the killing.
The trial court ruled that such evidence was misleading, because the
window, from where said witness allegedly saw the incident, was at the eastern
side of her house, and thus afforded a clear view of the incident, while the
window referred to by the defense was at the southern portion.
7. The
questioned testimonies of Dr. Flores, Nelson Ilisan and Provincial Prosecutor
Pedro Victoriano, Jr., though not formally offered as evidence, may be admitted
because of the failure of the defense to object thereto at the time they were
called to testify.
8. The
defense failed to prove that the prosecution witnesses had any ill motive to
testify falsely against the appellant.
9. Appellants
had a motive to kill the victim. Nelson
Ilisan testified that his brother Ronie (the victim) had witnessed Bonifacio
Buenaventura (a former chief commander of the San Jose Police Force) kill a
certain Ruben Ventura. Cawaling, who
was Buenaventura’s first cousin, wanted Ronie dead, because the latter had not
followed his instruction to leave town to prevent him from testifying in said
case.
Assignment of Errors
The appellants,
through their common counsel, Atty. Napoleon Galit, assign the following errors
to the lower court:
“1. The
trial court gravely erred in sustaining prosecutor’s theory of conspiracy and
thus renders nugatory or has totally forgotten that policemen when in actual
call of duty normally operate in group but not necessarily in conspiracy.
2. The
trial court gravely erred in believing the theory of the prosecution that
accused-appellant Ulysses Cawaling was one of the alleged co-conspirators in
the killing of the deceased Ronnie Elisan.
3. The
trial court gravely erred in not believing the defense of accused-appellant
Ulysses Cawaling that he has nothing to do with the shooting incident except to
shout to arrest the accused[,] which prompted his co-accused policemen to chase
the accused and sho[o]t him when he resisted, after he fired at Mayor Cawaling.
4. The
trial court gravely erred in not giving weight to accused-appellant
policemen[‘s] testimonies which carry the presumption of regularity.
5. The
trial court gravely erred in not acquitting all the accused-appellants by
applying ‘the equipoise rule’ thereby resulting [i]n reasonable doubts on the
guilt.”[25]
In their joint
brief,[26]
Appellants Tumbagahan and Cajilo cite these other errors:
“1. The
trial court gravely erred in relying on the theory of the prosecution that
accused-appellants Ernesto Tumbagahan and Hilario Cajilo were alleged
co-conspirators in the killing of the victim, Ronie Ilisan.
2. The
trial court gravely erred in not believing the defense that herein
accused-appellants merely did a lawful duty when the shooting incident happened
which led to the death of Ronnie Ilisan.
3. The
trial court gravely erred in not acquitting herein accused-appellants by
applying the equipoise rule, thereby resulting in reasonable doubt on their
guilt.
4. Prescinding
from the foregoing, herein accused-appellants do press and hold, that the lower
court committed grave, serious and
reversible error in appreciating the qualifying circumstance of
treachery (alevosia).
5. The
lower court committed grave, serious and reversible error in convicting both
accused-appellants of murder, instead merely of homicide, defined and penalized
under the Revised Penal Code.
6. The
lower court committed grave, serious and reversible error in appreciating the
qualifying circumstance of taking advantage of superior strength.
7. The
consummated crime being merely homicide, the mitigating circumstance of
voluntary surrender should be considered to lower the penalty of homicide.
8. The
lower court committed error in not considering double jeopardy.
9. The
lower court committed error in not dismissing the case for want of
jurisdiction.”[27]
Appellant
Cawaling imputes these additional errors to the court a quo:
“1. The
trial court gravely erred in not acquitting herein accused-appellant, Ulysses
M. Cawaling, considering that he had no part in the killing and the prosecution
failed to prove his guilt beyond reasonable doubt;
2. The
trial court gravely erred in not finding the shooting incident a result of hot
pursuit and shoot-out between the deceased Ronnie Ilisan and the police officers
in the performance of their duty and self-defense, and in sustaining the
prosecution’s conspiracy theory;
3. The
trial court gravely erred in not acquitting Accused-Appellant Ulysses M.
Cawaling considering that there was blatant absence of due process in the
proceedings tantamount to mistrial.”[28]
This Court’s Ruling
We affirm the
conviction of the appellants. In so
ruling, we will resolve the following issues:
(1) jurisdiction of the trial court, (2) double jeopardy, (3)
credibility of prosecution witnesses and their testimonies, (4) self-defense,
(5) performance of lawful duty, (6) alibi, (7) conspiracy, (8) rule on
equipoise, (9) qualifying circumstances, (10) damages and (11) attending
circumstances as they affect the penalty.
We shall address
the first two issues as important preliminary questions and discuss the merits
of the remaining ones, which we have culled from the errors cited by the
appellants in their aforementioned briefs.
First Issue:
Jurisdiction of the Trial Court
Appellants Tumbagahan
and Cajilo argue that the trial court erred when it assumed jurisdiction over
the criminal case. They insist that the
Sandiganbayan, not the regular courts, had jurisdiction to try and hear the
case against the appellants, as they were public officers at the time of the
killing which was allegedly committed by reason of or in relation to their
office.
We do not agree.
The jurisdiction
of a court to try a criminal case is determined by the law in force at the time
of the institution of the action. Once the court acquires jurisdiction, it may
not be ousted from the case by any subsequent events, such as a new legislation
placing such proceedings under the jurisdiction of another tribunal. The only recognized exceptions to the rule,
which find no application in the case at bar, arise when: (1) there is an express provision in the
statute, or (2) the statute is clearly intended to apply to actions pending
before its enactment.[29]
The statutes
pertinent to the issue are PD 1606, as amended;[30] and PD 1850,
as amended by PD 1952 and BP 129.
Section 4 of PD
1606[31] reads:
“Sec. 4. Jurisdiction. --
The Sandiganbayan shall exercise:
(a) Exclusive
original jurisdiction in all cases involving:
x x x x
x x x x x
(2) Other
offenses or felonies committed by public officers and employees in relation to
their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the penalty
prescribed by law is higher than prision correccional or imprisonment for six
(6) years, or a fine of P6,000.00:
PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph
where the penalty prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be tried by
the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court and Municipal Circuit Trial Court.
x x x x
x x x x
x”
However, former
President Ferdinand Marcos issued two
presidential decrees placing the members of the Integrated National Police
under the jurisdiction of courts-martial.
Section 1 of PD 1952,[32] amending
Section 1 of PD 1850, reads:
“SECTION 1. Court Martial Jurisdiction over Integrated
National Police and Members of the Armed Forces. Any provision of law to the contrary notwithstanding -- (a)
uniformed members of the Integrated National Police who commit any crime or
offense cognizable by the civil courts shall henceforth be exclusively tried by
courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as
amended, otherwise known as the Articles of War; (b) all persons subjects to military law under Article 2 of the
aforecited Articles of War who commit any crime or offense shall be exclusively
tried by courts-martial or their case disposed of under the said Articles of
War; Provided, that, in either of the
aforementioned situations, the case shall be disposed of or tried by the proper
civil or judicial authorities when court-martial jurisdiction over the offense
has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended,
or court-martial jurisdiction over the person of the accused military or
Integrated National Police personnel can no longer be exercised by virtue of
their separation from the active service without jurisdiction having duly
attached beforehand unless otherwise provided by law:
PROVIDED FURTHER, THAT THE
PRESIDENT MAY, IN THE INTEREST OF JUSTICE, ORDER OR DIRECT, AT ANY TIME BEFORE
ARRAIGNMENT, THAT A PARTICULAR CASE BE TRIED BY THE APPROPRIATE CIVIL COURT.
As used herein, the term uniformed
members of the Integrated National Police shall refer to police officers,
policemen, firemen, and jail guards.”
On the other
hand, the jurisdiction of regular courts over civil and criminal cases was laid
down in BP 129, the relevant portion of which is quoted hereunder:
“Sec. 20. Jurisdiction in
Criminal Cases. -- Trial Courts shall exercise exclusive original
jurisdiction in all criminal cases not within the exclusive jurisdiction of any
court, tribunal or body, except those now falling under the exclusive and
concurrent jurisdiction of the Sandiganbayan which shall hereafter be
exclusively taken cognizance of by the latter.”[33]
In relation to
the above, Section 4-a-2 of PD 1606, as amended by PD 1861, quoted earlier,
lists two requisites that must concur before the Sandiganbayan may exercise
exclusive and original jurisdiction over a case: (a) the offense was committed by the accused public officer in
relation to his office; and (b) the penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or higher than a fine of
six thousand pesos (P6,000).[34] Sanchez
vs. Demetriou[35] clarified
that murder or homicide may be committed both by public officers and by private
citizens, and that public office is not a constitutive element of said crime, viz.:
“The relation between the crime and
the office contemplated by the Constitution is, in our opinion, direct and not
accidental. To fall into the intent of
the Constitution, the relation has to be such that, in the legal sense, the
offense cannot exist without the office.
In other words, the office must be a constituent element of the crime as
defined in the statute, such as, for instance, the crimes defined and punished
in Chapter Two to Six, Title Seven, of the Revised Penal Code.
Public office is not the essence of
murder. The taking of human life is
either murder or homicide whether done by a private citizen or public servant,
and the penalty is the same except when the perpetrator, being a public
functionary, took advantage of his office, as alleged in this case, in which
event the penalty is increased.
But the use or abuse of office does
not adhere to the crime as an element; and even as an aggravating circumstance,
its materiality arises, not from the allegations but on the proof, not from the
fact that the criminals are public officials but from the manner of the
commission of the crime.”
Furthermore, the
Information filed against the appellants contains no allegation that appellants
were public officers who committed the crime in relation to their office. The charge was for murder, a felony
punishable under Article 248 of the Revised Penal Code. As clarified in Aguinaldo, et al. vs.
Domagas, et al.,[36] “[I]n the
absence of such essential allegation, and since the present case does not
involve charges of violation of R.A. No. 3019 (the Anti-Graft etc. Act), the
Sandiganbayan does not have jurisdiction over the present case. (Bartolome vs.
People, 142 SCRA 459 [1986] Even before
considering the penalty prescribed by law for the offense charged, it is thus
essential to determine whether that offense was committed or alleged to have
been committed by the public officers and employees in relation to their
offices.”
Jurisdiction is
determined by the allegations in the complaint or information.[37] In the
absence of any allegation that the offense was committed in relation to the
office of appellants or was necessarily connected with the discharge of their
functions, the regional trial court, not the Sandiganbayan, has jurisdiction to
hear and decide the case.[38]
Second Issue:
Double Jeopardy
In seeking their
acquittal, Appellants Tumbagahan and Cajilo also invoke their right against
double jeopardy. They argue that the first
jeopardy attached when a criminal case for murder was filed before the Judge
Advocate General’s Office (JAGO), which was allegedly dismissed after several
hearings had been conducted.[39] We are
not persuaded.
There is double
jeopardy when the following requisites are present: (1) a first jeopardy has attached prior to the second; (2) the first jeopardy has been validly
terminated; and, (3) a second jeopardy is for the same offense as that in the
first. And the first jeopardy attaches
only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused
was acquitted or convicted, or the case was dismissed or otherwise terminated
without his express consent.[40]
For a better
appreciation of appellants’ argument, we must consider PD 39[41] and its
implementing rules,[42] which
prescribe the procedure before a military commission. A summary preliminary investigation shall be conducted before
trial for the purpose of determining whether there is prima facie
evidence to pursue trial before a military commission. The investigation report shall contain a
summary of the evidence, the acts constituting the offense or offenses
committed, and the findings and recommendations of the investigating
officer. Thereafter, the report shall
be forwarded to the judge advocate general, who shall determine for either the
defense secretary or for the AFP chief of staff whether the case shall be
referred for trial to a military commission.[43] Where a prima
facie case is found against the accused, formal charges shall be signed by
a commissioned officer designated by the judge advocate general.[44] The
accused shall then be arraigned, during which the charge and specification
shall be read and the accused shall enter his plea.[45] After
hearings, a record of the trial shall be forwarded to the AFP chief of staff
for proper action.[46]
In the present
case, the appellants have presented no sufficient and conclusive evidence to
show that they were charged, arraigned and acquitted in a military commission,
or that the case was dismissed therein without their consent. The defense merely offered as evidence
certain disposition forms[47] and a
letter,[48] dated
March 8, 1983, recommending that the case against Appellants Tumbagahan, Cajilo
and De los Santos be dropped and considered closed.[49] No charge
sheet and record of arraignment and trial were presented to establish the first
jeopardy.
As pointed out
by the solicitor general, “appellants were never arraigned, they never pleaded
before the Judge Advocate General’s Office, there was no trial, and no judgment
on the merits had been rendered.”[50]
Third Issue:
Credibility of Witnesses
As a general
rule, the factual findings of trial courts deserve respect and are not
disturbed on appeal, unless some facts or circumstances of weight and substance
have been overlooked, misapprehended or misinterpreted, and would otherwise
materially affect the disposition of the case.[51] This rule,
however, does not apply when the judge who penned the decision was not the same
one who had heard the prosecution witnesses testify,[52] as in the
present case. Nonetheless, we have
carefully perused and considered the voluminous records of this case, and we find no reason to alter the findings
of the court a quo in regard to the credibility of the prosecution
witnesses and their testimonies.
Vicente Ilisan,
the victim’s brother, narrated before the trial court the circumstances
relevant to the crime:
“Q. In
the evening of December 4, 1982, at about 8:00 or 8:30, where were you?
A. I
was inside the restaurant of Andres Fontamillas.
x x x x
x x x x x
Q. What
were you doing there?
A. I
was drinking tuba.
Q. When
you were about to finish drinking tuba, what did you do?
A. I
stood up preparing to go home.
Q. Were
you able to leave that restaurant actually?
A. No,
sir.
Q. Why?
A. Luz
Venus told us not to go out when [I] stood up to go home.
Q. Do
you know why you were advise[d] not to go out?
A. Yes,
sir.
Q. Why?
A. Because
we were being watched by Mayor Cawaling, Andres Fontamillas, Hilario Cajilo and
Alex Bat[ui]gas.
x x x x
x x x x x
Q. When
you were informed by Luz Venus that you should not go out because Mayor
Cawaling and the persons you mentioned were outside watching for you, what did
you do?
A. We
did not go out.
Q. Since
you remained inside, what did you do?
A. I
also viewed thru the window.
Q. Did
you see them?
A. Yes,
sir.
Q. How
far were they from the restaurant?
A. About
three meters.
Q. What
were they doing outside the restaurant?
A. They
were also viewing us.
Q. For
how long did they remain there viewing you?
A. Just
a short time.
Q. And
later on, do you know where did they go? [sic]
A. No,
sir. I went out from the restaurant and
when I went out, I did not see them anymore.
Q. Before
you went out of the restaurant, what did you do?
A. Diosdado
Venus accompanied us.
Q. Why
did you ask Diosdado Venus to accompany you?
A. Yes,
sir. Because we were aware that we were
being watched from outside so we asked to be accompanied by Diosdado Venus.
Q. From
the restaurant accompanied by Diosdado Venus, what did you do?
A. Towards
home.
Q. Were
you able to reach home?
A. No,
sir.
Q. Why,
what happened on the way?
A. Diosdado
Venus ran going back because we were lighted by a flashlight.
Q. How
many flashlight[s] were trimed [sic] to you?
A. Six.
Q. Did
you come to know who trimed [sic] the flashlight towards you?
A. Yes,
sir.
Q. Who
were they?
A. Mayor
Cawaling, Andres Fontamillas, Hilario Cajilo, Ernesto Tumbagahan, Ricardo delos
Santos and Alex Batuigas.
Q. How
were you able to recognize them when that was night time?
A. Because
the flashlight[s] were bright.
Q. When
Diosdado Venus ran back to his restaurant, what did your brother Ronie Elisan
and you do?
A. We
also ran towards home.
Q. To
whose house?
A. That
of my older sister Imelda [E]lisan.
Q. Were
you able to reach that house?
A. No,
sir.
Q. Why,
what happened when you ran away?
A. Andres
Fontamillas and Hilario Cajilo were blocking us on the gate of the fence of my
sister’s house.
Q. Since
your way was blocked, where did Ronie Elisan go?
A. We
ran towards the ricefield.
Q. When
you ran, what did Mayor Cawaling do?
A. They
were chasing us.
Q. What
about Alex Batuigas, what did he do?
A. He
also followed helping chasing us. [sic]
Q. What
about the four policemen, what did they do?
A. The
same. They were also chasing us.
Q. About
how far is that restaurant [from] the spot where you were first lighted by the
flashlight of the accused?
A. About
one hundred meters.
Q. Now,
according to you, you ran towards the ricefield, what happened while you were
running towards the ricefield?
A. I
saw my brother fell [sic] down.
Q. Fell
down where?
A. On
the ricefield.
Q. What
about you, where were you when your brother fell down in the ricefield?
A. I
ran towards the bushes.
Q. What
did you do upon reaching the bushes?
A. I
la[y] on the ground with my belly touch[ing] on the ground behind the coconut
tree.
Q. When
your brother according to you had fallen on the ricefield, what did he do
thereafter?
A. He
rose up, [raised] his hands and surrender[ed] to them.
Q In
rising, what was his position?
A. He
was rising like this. (Witness
demonstrating by kneeling [and] raising his two hands).
Q. While
Ronie Elisan was kneeling and raising both of his hands, what happened?
A. Mayor
Cawaling approached him together with the four policemen and his brother-in-law
and they shot him.
Q. Do
you know what weapon[s] were used in shooting your brother?
A. Yes,
sir.
Q. What
weapon were used?
A. The
weapon of Mayor Cawaling is .45 caliber and that of Andres Fontamillas and
Hilario Cajilo were both armalite and that of Ernesto Tumbagahan, Alex Batuigas
and Ricardo delos Santos were .38 caliber.
Q. How
were you able to identify their weapons?
A. Because
the flashlight[s] were bright.
Q. Now,
what happened to your brother when he was fired upon by the accused in this
case?
A. He
fell down.
Q. And
how far is that spot where your elder brother had fallen down to the spot where
Diosdado Venus left you when he returned to the restaurant?
A. To
my estimate it is about 300 meters.
Q. After
your brother had fallen down, what did the accused do?
A. Mayor
Cawaling said, [“]you left him, he is already dead.[“]
Q. Where
did they go?
A. They
went towards the house of Mayor Cawaling.”[53]
Imelda
Tumbagahan was at home feeding her child when she heard her brother Ronie
shouting for help. After getting a
flashlight and looking through the window of her house, she saw Cawaling and
Alex Batuigas chasing Ronie who was running towards her house. Tumbagahan and De los Santos prevented Ronie
from entering the fence of her house, as a result of which, her brother ran
towards a rice field nearby. There, on
bended knees and with hands raised, Ronie was shot by Cawaling and his men.[54]
Nelson Ilisan
also heard his younger brother Ronie shouting for help while being chased by
the group of Cawaling. As Cajilo and
Fontamillas blocked Ronie from entering the gate of Imelda’s house, the victim
ran towards a rice field. Nelson
stopped Cawaling and asked, “Nong, basi guinalagas ninyo ang acon hali?
(Nong, why do you chase my brother?)” But the mayor merely continued chasing
Ronie. Thereafter, Nelson saw his
brother, on his knees with both hands raised, shot by appellants.[55]
The three
aforementioned witnesses narrated in detail the assault against their brother
Ronie and positively identified the appellants as the perpetrators. The trial court cannot be faulted for
relying on their testimonies and accepting them as true,[56] especially
when the defense failed, to prove any ill motive on their part.[57] In
addition, family members who have witnessed the killing of their loved one
usually strive to remember the faces of the assailants.[58] Thus, the
relationship per se of witnesses with the victim does not necessarily
mean that the former are biased. On the
contrary, it is precisely such relationship that would impel them to seek
justice and put the real culprit behind bars, rather than impute the offense to
the innocent.[59]
Appellant
Cawaling submits that the prosecution witnesses tampered with the evidence by
cleaning the cadaver before an autopsy could be done. “Such irregular washing of the cadaver by a close relative
of the deceased, who is educated
and who presumably knew perfectly well the need to preserve it in its original
state for the medico-legal examination[,] is highly suspicious. It points to the fact that the relatives of
the deceased wanted to hide, or erase something that would bolster and assist
the defense (that is, state of drunkenness, powder burns or lack thereof,
indicating the firing of a weapon or the proximity of the weapon used on the
deceased, etc.).”[60]
Such contention
is unavailing. First, Bebelinia
Sacapaño merely cleaned the cadaver and made no further examination. Second, appellants had an opportunity
to have the body examined again to determine or prove important matters, such
as whether Ronie was drunk, if he fired a gun, how many and what caliber of
guns were used in shooting him; they did not, however, avail themselves of this
opportunity. As public officers,
appellants knew that it was within their power to request or secure from the
court, or any other competent authority, an order for another autopsy[61] or any such evidence as may affirm
their innocence. Third, their
conviction lies in the strong and convincing testimonial evidence of the
prosecution, not in the corroborative testimony of Bebelinia Sacapaño.
Relying on the
testimonies of Luz Venus and Gil Palacio, Appellant Cawaling also pointed out
that “[t]he power of observation of alleged eyewitness Vicente was severely
affected by his intoxication. It may be
inferred that an intoxicated person’s sense[s] of sight and hearing and of
touch are less acute than those of a sober person and that his observation are
inexact as to what actually occurred.”[62]
This argument is
not persuasive. The evidence presented fails
to show that Vicente was so intoxicated that night as to affect his powers of
observation and retrospection. Defense
Witness Palacio merely saw the witness drinking tuba on the night of the
killing.[63] Meanwhile
the whole testimony of Luz on the matter mainly reveals that Ronie was the
person she was referring to as drunk, as shown by this portion:[64]
“Q When
Ronie and Vicente both surnamed Ilisan entered the C & J-4 kitchenette what
if any did you observe?
A I
saw them so dr[u]nk (Nakita ko sila lasing na lasing).
Q Who
was lasing na lasing or so dr[u]nk?
A Ronie
Ilisan sir.”
Granting that
Vicente was drunk, the conviction of the appellants is still inevitable in view
of the positive declarations of Witnesses Nelson and Imelda, who unequivocally
identified appellants as perpetrators of the senseless killing of their brother
Ronie.
Appellant
Cawaling also questions the trial court’s reliance on the testimonies of Dr.
Blandino Flores,[65] Nelson
Ilisan[66] and Prosecutor Pedro Victoriano, Jr.,[67] for
failure of the prosecution to offer them as evidence. In People vs. Java,[68] this Court
ruled that the testimony of a witness, although not formally offered in
evidence, may still be admitted by the courts, if the other party does not
object to its presentation. The Court
explained: “Section 36 of [Rule 132]
requires that an objection in the course of the oral examination of a witness
should be made as soon as the grounds therefor shall become reasonably
apparent. Since no objection to the
admissibility of evidence was made in the court below, an objection raised for
the first time on appeal will not be considered.” In the present case, a cursory reading of the stenographic notes
reveals that the counsel for the appellants did not raise any objection when
said witnesses testified on the matters now being impugned. Moreover, they repeatedly cross-examined the
witnesses, which shows that they had waived their objections to the said
testimonies of such witnesses.
Lastly,
Appellant Mayor Cawaling questions the motive of Prosecutor Pedro Victoriano
Jr. This contention is likewise bereft
of merit. Unlike judges who are
mandated to display cold neutrality in hearing cases,[69] prosecutors
are not required to divest themselves of their personal convictions and refrain
from exhibiting partiality. In this
case, there is reasonable ground for Prosecutor Victoriano to believe that an
offense has been committed and that the accused was probably guilty thereof.[70] Under the
circumstance, it is his sworn duty to see that justice is served.[71] Thus,
“[h]e may prosecute with earnestness and vigor - - indeed, he should do
so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one.”[72] Further,
“Under the prevailing criminal
procedure, the fiscal’s sphere of action is quite extensive, for he has very
direct and active intervention in the trial, assuming as the Government’s
representative the defense of society, which has been disturbed by the crime,
and taking public action as though he were the injured party, for the purpose
of securing the offender’s punishment, whenever the crime has been proved and the
guilt of the accused as the undoubted perpetrator thereof established.”[73]
Fourth Issue:
Self-Defense
To escape
criminal liability, the appellants also invoke the justifying circumstances of
self-defense and lawful performance of duty.[74] Allegedly,
Ronie was firing his gun and shouting “Guwa ang maisog! (Come out who is
brave!).” Then the mayor and the
policemen arrived at the scene to pacify him.
Ronie fired at them, which forced them to chase him and return fire.
We find this
scenario bereft of plausibility.
Unlawful
aggression on the part of the victim is a condition sine qua non for the
successful invocation of self-defense.[75] As
factually found by the trial court, unlawful aggression did not start with the
victim, but rather with the appellants.
Cawaling and his men proceeded to the C & J-4 Kitchenette and waited
for Ronie to come out. When the victim
did, they chased and shot him without giving him any opportunity to defend
himself.
Granting arguendo
the veracity of the defense’s factual version, it is important to note that
appellants admitted that Ronie was running away from them when they chased and
shot him. Thus, unlawful aggression --
assuming it was initially present – had ceased, and the appellants no longer
had any right to pursue the offender.
Basic is the rule that when unlawful aggression ceases, the defender no
longer has the right to kill or even wound the former aggressor. Upon the cessation of the unlawful
aggression and the danger or risk to life and limb, there should be a corresponding
cessation of hostilities on the part of the person defending himself.[76]
Furthermore, the
means employed to ward off the attack was unreasonably excessive. Being armed, the appellants could have
easily ordered the victim to surrender.
Even the first shot at his shoulder would have been sufficient to
immobilize him, yet they fired a succession of shots at him while he was in no
position to put up a defense.
Jurisprudence
teaches that when an accused admits having committed the crime but invokes
self-defense to escape criminal liability, the burden of proof is reversed and
shifted to him. He must then prove the
elements of self-defense.[77] It
necessarily follows that he must now rely on the strength of his own evidence
and not on the weakness of that of the prosecution; for even if the latter
evidence were weak, it could not be disbelieved after the accused has admitted
the killing.[78] Thus,
appellants must establish with clear and convincing evidence that the killing
was justified, and that they incurred
no criminal liability therefor.[79] They
failed to do so, and their conviction thus becomes inevitable.[80]
Fifth Issue:
Lawful Performance of Duties
Appellants
contend that the killing of Ronie resulted from the lawful performance of their
duties as police officers. However,
such justifying circumstance may be invoked only after the defense successfully
proves that (1) the accused acted in the performance of a duty, and (2) the
injury or offense committed is the necessary consequence of the due performance
or lawful exercise of such duty.[81] These two
requisites are wanting in this case.
The appellants,
except Mayor Cawaling, were men in uniform who happened to be on duty when they
killed Ronie. The victim was not
committing any offense at the
time. Killing the victim under the
circumstances of this case cannot in any wise be considered a valid performance
of a lawful duty by men who had sworn to maintain peace and order and to
protect the lives of the people. As
aptly held in People vs. De la Cruz,[82] “Performance
of duties does not include murder.”
That Ronie was a troublemaker in their town is not an excuse; as the
Court declared in the same case of People vs. De la Cruz, “Murder is
never justified, regardless of the victim.”
Sixth Issue:
Alibi
We likewise
brush aside the defenses of alibi and denial raised by Appellant De los
Santos. Prosecution witnesses
positively identified him and Fontamillas as part of the group which chased and
shot Ronie Ilisan. It is elementary
that alibi and denial are outweighed by positive identification that is
categorical, consistent and untainted by any ill motive on the part of the
eyewitness testifying on the matter.
Alibi and denial, if not substantiated by clear and convincing evidence,
are negative and self-serving evidence undeserving of weight in law.[83]
In fact, De los Santos failed to establish with clear
and convincing evidence that it was physically impossible for him to have been
at the scene of the crime during its commission.[84] The evidence
he had presented demonstrated only that, at the time, he was sleeping in his
house, which was near the locus criminis.
Alibi is always
considered with suspicion and received with caution, not only because it is
inherently weak and unreliable, but also because it is easily fabricated and
concocted.[85] It is
therefore incumbent upon the appellant to prove that he was at another place
when the felony was committed, and that it was physically impossible for him to
have been at the scene of the crime at the time it was committed.[86] This he
failed to prove.
Seventh Issue:
Conspiracy
The trial court
correctly appreciated the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not
write down their lawless plans and plots.
The agreement to commit a crime, however, may be deduced from the mode
and manner of the commission of the offense or inferred from acts that point to
a joint purpose and design, concerted action, and community of intent.[87] It does
not matter who inflicted the mortal wound, as the act of one is the act of all,
and each incurs the same criminal liability.[88] We concur
with the trial court’s elucidation:
“All of the accused chased the
victim and his brother; four (4) of whom blocked their ways, first, to their
elder brother Nelson Elisan’s house and, second, to their elder sister Imelda
Elisan Tumbagahon’s house. Having
changed course by proceeding to the ricefield in their desperate attempt to
evade the accused, all the six (6) armed accused continued their pursuit. Their victim, having fallen on the rice
paddy, and rising and kneeling on it with raised hands, all the said accused
with their flashlights beamed on their victim, in a united and concerted
manner, shot him. After Ronie Elisan
had fallen down, co-accused Mayor Cawaling was even heard as saying ‘(Y)ou left
[sic] him, he is already dead.’ x x x.”[89]
Eighth Issue:
Equipoise Rule
We reject
appellants’ position that the equipoise rule should apply to this case.[90] In People
vs. Lagnas,[91] the Court
through Mr. Justice Florenz D. Regalado described this rule, as follows:
“Once again, albeit in effect a
supportive and cumulative consideration in view of the preceding disquisition,
the equipoise rule finds application in this case, that is, 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 consistent with
his guilt, then the evidence does not fulfill the test of moral certainty, and
is not sufficient to support a conviction.”
In this case,
the inculpatory facts point to only one conclusion: appellants are guilty. As amplified in the discussion above, the
Court agrees with the trial court that the guilt of the appellants was proven
beyond reasonable doubt.
Ninth Issue:
Murder or Homicide?
The Information
alleges three qualifying circumstances: treachery, evident premeditation and taking
advantage of superior strength. If
appreciated, any one of these will qualify the killing to murder. However, Appellants Tumbagahan and Cajilo
posit that there was no treachery, reasoning that Ronie was not an unsuspecting
victim, as he had been forewarned by Diosdado Venus of the presence of the
appellants inside the restaurant and there had been a chase prior to the
killing. Further, they contend that
abuse of superior strength is deemed absorbed in treachery, and that “the
addition of abuse of superior strength to qualify the case to murder is nothing
more than mere repetition - a legal chicanery, so to say. Similarly, where treachery is not proved,
there can be no abuse of superior strength, vice-versa.”[92]
We partly agree.
Treachery exists
when the malefactors employ means and methods that tend directly and especially
to insure their execution without risk to themselves arising from the defense
which the victims might make. The
essence of treachery is the sudden and unexpected attack without the slightest
provocation on the part of the person attacked.[93] While we
do not disregard the fact that the victim, together with his brother Vicente,
was able to run towards a rice field, we still believe that treachery attended
the killing.
In People vs.
Landicho,[94] we ruled
that treachery might still be appreciated even when the victim was warned of
danger to his person, for “what is decisive is that the execution of the attack
made it impossible for the victim to defend himself or to retaliate.”
The appellants
waited for Ronie to come out of the restaurant. All of them chased the victim and prevented him from seeking
refuge either in the house of his sister Imelda or that of his brother
Nelson. All of them carried firearms
and flashlights. They fired their guns
at the victim while he was on his knees with arms raised, manifesting his
intention not to fight back.
We cannot
appreciate the aggravating circumstance of abuse of superior strength, however,
as we have consistently ruled
that it is deemed absorbed in treachery.[95]
We also affirm
the finding of the trial court that the prosecution failed to prove the
attending circumstance of evident premeditation. To prove this aggravating circumstance, the prosecution must show
the following: (1) the time when the
offender determined to commit the crime; (2) an act manifestly indicating that
the offender clung to his determination; and (3) a lapse of time, between the
determination to commit the crime and the execution thereof, sufficient to
allow the offender to reflect upon the consequences of his act.[96] Nothing in
the records shows how and when the plan to kill was hatched, or how much time
had elapsed before it was carried out.
Tenth Issue:
Damages
The trial court
awarded the following: (a) P50,000.00, as civil indemnity; (b)
P6,000.00, as actual damages; and (c) P116,666.66, for lost
earnings. In computing the latter, the
trial court used the following formula:
“Total annual net income = 10% x total annual gross
income
= .10 x P25,000.00
= P2,500.00
xxx xxx xxx
Loss of earning capacity of Ronie
Elisan = 2/3 (90-20) x P2,500.00 = P116,666.66.”[97]
Consistent with
jurisprudence, we affirm the ruling of the trial court awarding the amount of
P50,000 as civil indemnity to the heirs of the victim.[98]
We cannot do the
same to the award of actual damages and lost earnings, however. The award of actual damages has no basis, as
no receipts were presented to substantiate the expenses allegedly
incurred. An alleged pecuniary loss
must be established by credible evidence before actual damages may be awarded.[99] Similarly
erroneous is the award for loss of earning capacity, which should be computed
as follows:[100]
“2/3 x [80 - age of victim at the time of death] x
[reasonable portion of the annual net income which would have been received as
support by heirs]”
As testified to
by Nelson Ilisan, the deceased had been earning an average of P100 daily or P3,000 monthly.[101] From this
monthly income must be deducted the reasonable amount of P1,000
representing the living and other necessary expenses of the deceased. Hence, the lost earnings of the deceased
should be computed as follows:
= 2/3 x
[80 - 22] x [P24,000]
= 2/3 x [58] x [P24,000]
= 2[P 1,392,000]
3
= P2,784,000
3
= P928,000.
Eleventh Issue:
Aggravating and Mitigating Circumstances
Prior to the
amendment of Section 248 of the Revised Penal Code,[102] the
imposable penalty for murder was reclusion temporal in its maximum
period to death. In their Brief,
Appellants Cajilo and Tumbagahan argue for the imposition of the lower penalty
of reclusion temporal, contending that their filing of bail
bonds/property bonds, before the order for their arrest was issued, should be
treated as voluntary surrender.[103]
We cannot accept
this contention. In the first place, it
has no factual basis. The warrant for
the arrest of herein appellants was issued on August 18, 1987,[104] but
appellants’ counsel filed the Urgent Motion for Bail only thereafter, on
September 2, 1987.[105] In the
second place, appellants failed to prove the requisites for voluntary
surrender, which are: (1) the offender
has not been actually arrested; (2) the offender surrenders himself to a person
in authority or to the latter’s agent; and (3) the surrender is voluntary.[106] The
records reveal that a warrant of arrest was actually served on Tumbagahan and
Cajilo[107] on
September 2, 1987 and that they were in fact detained.[108]
In view of the
absence of any other aggravating or mitigating circumstance, the trial court
correctly imposed reclusion perpetua.
WHEREFORE, the appeal is hereby DENIED
and the assailed Decision is AFFIRMED with the following MODIFICATIONS: (1) the award of P6,000 as actual
damages is DELETED, and (2) the award for loss of earning capacity is INCREASED
to P928,000. Costs against
appellant.
SO ORDERED.
Davide, Jr.,
(Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.
[1] People vs. Bautista, 254 SCRA 621, 626, March
12, 1996.
[2] Penned by Judge Placido C. Marquez; records, Vol. II,
pp. 389-422.
[3] Sometimes spelled “Tumbagahon” in the TSN.
[4] With docket number 85-0419.
[5] Sometimes spelled “Elisan” in the records and the
TSN.
[6] Sometimes spelled “Ronnie.”
[7] Composed of Amelia L. Cube as chairman; Artemio B.
Cana, representative of the then Ministry of Justice; and Francisco A.
Bautista, representative of the Philippine Constabulary.
[8] See Records of Exhibit, pp. 6-14.
[9] Records, Vol. I, p. 73.
[10] Presided by Judge Cezar R. Maravilla.
[11] Rollo, p. 17.
[12] Records, Vol. I, p. 215.
[13] Records, Vol. I, p. 241.
[14] The trial court issued an Order dated October 28,
1994 dismissing the case against Andres Fontamillas, when the latter died of
congestive heart failure before final judgment could be rendered. (See death certificate in records,
Vol. II, p. 388.)
[15] Acting on the request of Nelson Ilisan to inhibit
Judge Cezar R. Maravilla from further hearing the case, this Court issued a
Resolution dated September 13, 1990, designating Judge Placido C. Marquez in lieu
of Judge Maravilla. (See
Records, Vol. I, p. 510.)
[16]
Promulgated on October
28, 1994. (See Records, Vol. II,
p. 423.)
[17]
Decision, pp. 33-34; Rollo,
pp. 87-88.
[18]
The case was deemed
submitted for resolution on December 2, 1996, when the Court received a copy of
the Brief for Appellee. The filing of a
reply brief was deemed waived, as none was filed within the reglementary
period.
[19] Decision, pp. 3-4; rollo, pp. 57-58.
[20] Records of Exhibit, p. 2.
[21]
Records of Exhibit, p.
4.
[22] Rollo, pp.
318 et seq.
[23] Brief for Appellant Cawaling, pp. 2-5; rollo,
pp. 319-322.
[24] Decision, p. 21; rollo, p. 75.
[25] “Brief for all the Appellants,” pp. 16-17; rollo,
pp. 179-180.
[26] Filed by their counsel, Joselito R. Enriquez; rollo,
pp. 252-279.
[27] Brief for Appellants Ernesto Tumbagahan and Hilario
Cajilo, pp. 15-44; rollo, pp. 252-279.
[28] Brief for Appellant Ulysses Cawaling, signed by Atty.
Daniel C. Gutierrez, p. 10; rollo, p. 327.
[29] People vs. Velasco, 252 SCRA 135, 147, January
23, 1996. See also Aruego, Jr.
vs. Court of Appeals, 254 SCRA 711, 719-720, March 13, 1996.
[30] By PDs 1629,1860, and 1861, BP 129, and EOs 101 and
184. Although inapplicable to this case because it was approved only on
February 5, 1997, RA 8249 limits the jurisdiction of the Sandiganbayan to
public officers occupying positions corresponding to salary grade 27 or higher
and to police officers occupying the position of provincial director and those
holding the rank of senior superintendent or higher.
[31] The original § 4 of PD 1606 was amended by PDs 1860
and 1861.
[32] Re: “Amending
Section One of Presidential Decree No. 1850, entitled, ‘Providing for the Trial
by Courts-Martial of Members of the Integrated National Police and Further
Defining the Jurisdiction of Courts-Martial Over Members of the Armed Forces of
the Philippines.’”
[33] BP 129.
Corollary to § 33 thereof, the RTC shall have jurisdiction over all
offenses punishable with imprisonment exceeding four years and two months or a
fine of more than P4,000 or both such fine and imprisonment.
[34] Natividad vs. Felix, 229 SCRA 680, 686-687,
February 4, 1994.
[35] 227 SCRA 627, 645, November 9, 1993, per Cruz, J.,
citing Montilla vs. Hilario (90 Phil 49).
[36] En Banc
Resolution, GR No. 98452, September 26, 1991.
[37] Lim vs. Court of Appeals, 251 SCRA
408, 418, December 19, 1995.
[38] People vs. Magallanes, 249 SCRA 212, 222-223,
October 11, 1995.
[39] Brief for Appellants Tumbagahan and Cajilo, pp.
43-44; rollo, pp. 278-279.
[40]
Guerrero vs. Court
of Appeals, 257 SCRA 703, 712-713, June 28, 1996 and People vs. Leviste,
255 SCRA 238, 249, March 28, 1996.
[41] “Governing the Creation, Composition, Jurisdiction,
Procedure, and Other Matters Relevant to Military Tribunals.”
[42] “Governing the Creation, Composition, Jurisdiction,
Procedure, and Other [Matters Relevant to Military] Tribunals.”
[43] Ibid.,
Rule 4, par. a-1.
[44] Ibid.,
Rule 4, par. a-2.
[45] Ibid.,
Rule 4, par. b-3-b.
[46] Ibid.,
Rule 4, par. c-1.
[47] Exhibits 6, 7, 7-A, 8 and 8-A.
[48] Exhibit 6-A.
[49] The last form with a later date is merely a pretrial
advice.
[50] Brief for the Appellee, pp. 23-24; rollo, p.
[456].
[51] People vs. Cogonon, 262 SCRA 693, 704, October
4, 1996.
[52] People vs. Reyes, GR No. 91262, January
28, 1998.
[53] TSN, March 16, 1988, pp. 7-14.
[54] TSN, January 17, 1989, pp. 3-59 and January 18, 1989,
pp. 2-23.
[55] TSN, August 28, 1989, pp. 26-41 and February 27,
1990, pp. 2-47.
[56] See People vs. Monterey, 261 SCRA 357, 372,
September 3, 1996 and People vs. Bongadillo, 234 SCRA 233, 243, July 20,
1994.
[57] People vs. Pano, 257 SCRA 274, 283, June 5,
1996 and People vs. Prado, 254 SCRA 531, 538, March 8, 1996.
[58] People vs. Ramos, 260 SCRA 402, 410, August 7,
1996.
[59] People vs. Juan, 254 SCRA 478, 487, March 7,
1996 and People vs. Fabrigas, 261 SCRA 436, 446-447, September 5, 1996.
[60] Brief for Appellant Cawaling, p. 22; rollo, p.
338.
[61] PD 856 (Re:
Code on Sanitation) states:
“SEC.
95. Autopsy and Dissection of
Remains - The autopsy and dissection of remains are subject to the
following requirements:
x x x x
x x x x x
b. Autopsies shall be performed in the
following cases:
1. Whenever required by special laws;
2. Upon orders of a competent court, a
mayor and a provincial or city fiscal;
3. Upon written request of police
authorites;
4. Whenever the Solicitor General, provincial
or city fiscal as authorized by existing laws, shall deem it necessary to
disinter and take possession of remains for examination to determine the cause
of death; and
5. Whenever the nearest kin shall request in writing the
authorities concerned to ascertain the cause of death.”
[62] Brief for Appellant Cawaling, p. 15; rollo, p. 331.
[63] TSN, June 14, 1993, p. 52.
[64] Ibid, p.
23.
[65] TSN, August 28, 1989, pp. 1-26.
[66] Ibid., pp.
26-41.
[67] TSN, March 27, 1990, pp. 2-29.
[68] 227 SCRA 668, 679-680, November 10, 1993, per Nocon, J. See also People vs. Cadocio, 228 SCRA
02, 609-610, December 17, 1993.
[69] Paragraph 2, § 14, Article III of the 1987
Constitution.
[70] See § 1, Rule 112 of the Rules of Court.
[71] Ibid., §
4, Rule 110.
[72] Suarez vs. Platon, 69 Phil 556, 564-565, February 7, 1940, per Laurel, J.
[73] United States vs. Casipong and Hongoy, 20 Phil. 178, 181-182, September 5, 1911, Torres, J.
[74] Art. 11 of the Revised Penal Code states:
“ART. 11. Justifying
circumstances. - The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed
to prevent or repel it.
Third. Lack of sufficient provocation on the part
of the person defending himself.
x x x x
x x x x x
5. Any person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office.”
[75] People vs. Balamban, 264 SCRA 619, 631,
November 21, 1996; People vs. De Gracia, 264 SCRA 200, 207,
November 14, 1996; and, People vs. Deopante, 263 SCRA 691, 706, October
30, 1996.
[76] People vs. Babor, 262 SCRA 359, 365, September
24, 1996. See also People vs. Capoquian,
236 SCRA 655, September 22, 1994.
[77] See § 1, Rule 131 of the Rules of Court.
[78] People vs. Vallador, 257 SCRA 515, 524, June
20, 1996. See also People vs. Tampon,
258 SCRA 115, 124, July 5, 1996; People vs. Nuestro, 240 SCRA 221, 227,
January 18, 1995;
[79] People vs. Balamban, 264 SCRA 619, 630,
November 21, 1996; People vs. Patotoy, 261 SCRA 37, 42-43, August 26,
1996; People vs. Morin, 241 SCRA 709, 714, February 24, 1995; People
vs. Adonis, 240 SCRA 773, 776, January 31, 1995; People vs. Daquipil,
240 SCRA 314, 329, January 20, 1995.
[80] People vs. Baniel, GR No. 108492, July 15,
1997; People vs. Viernes, 262 SCRA 641, 651, October 3, 1996; People
vs. Ganzagan, Jr., 247 SCRA 220, 233, August 11, 1995.
[81] People vs. Pinto, Jr., 204 SCRA 9, 27, November
21, 1991.
[82] 227 SCRA 278, 285, October 18, 1993, per Cruz, J.
[83] People vs. Dinglasan, 267 SCRA 26, 43, January
28, 1997 and People vs. Obzunar, 265 SCRA 547, 569, December 16, 1996.
[84] People vs. Pareja, 265 SCRA 429, 440, December
9, 1996.
[85] People vs. Castillo, 273 SCRA 22, 32-33, June
2, 1997.
[86] People vs. Sancholes, 271 SCRA 527, 541, April
18, 1997.
[87] People vs. Sequiño, 264 SCRA 79, 101-102,
November 13, 1996 and People vs. Jubila, Jr., 252 SCRA
471, 480, January 29, 1996.
[88] People vs. Salison, Jr., 253
SCRA 758, 770, February 20, 1996,
[89] Decision, pp. 17-18; rollo, pp. 71-72.
[90] Brief for Appellants Tumbagahan and Cajilo, p. 34;
rollo, p. 269.
[91] 222 SCRA 745, 762, May 28, 1993. See also People vs. Maongco, 230 SCRA 562, 572,
March 1, 1994; People vs. Ramilla, 227 SCRA 583, 587, November 8, 1993; and
People vs. Libag, 184 SCRA 707, 719, April 27, 1990.
[92] Brief for Appellants Tumbagahan and Cajilo, pp. 42; rollo,
p. 277.
[93] People vs. Cogonon, 262 SCRA 693, 704-705,
October 4, 1996.
[94] 258 SCRA 1, 28 July 3, 1996, per Davide, J. See also People vs. Babor, 262 SCRA
359, 366, September 24, 1996.
[95] People vs. Broncano, 260 SCRA 724, 738, August
22, 1996; People vs. Torrefiel, 256 SCRA 369, 379, April 18,
1996; and People vs. Patrolla, Jr., 254 SCRA 467, 476,
March 7, 1996.
[96] People vs. Magsombol, 252 SCRA 187, 200-201,
January 24, 1996 and People vs. Compendio, Jr., 258 SCRA
254, 264, July 5, 1996.
[97] Decision, p. 30; rollo, p. 84.
[98] People vs. Trilles, 254 SCRA 633, 643, March
12, 1996 and People vs. Dones, 254 SCRA 696, 710, March 13, 1996.
[99] People vs. Sol, 272 SCRA 392, 407, May 7,
1997.
[100] People vs. Villamor, GR No. 111313-14, January
16, 1998. People vs. Marollano,
GR No. 105004, July 24, 1997.
[101] TSN, August 29, 1989, p. 14-15.
[102] § 6 of RA 7659, which took effect only on December
31, 1993, amended § 248 of the Revised Penal Code.
[103] Brief for Appellants Tumbagahan and Cajilo, p. 43; rollo,
p. 278.
[104] Records, Vol. I, p. 44.
[105] Ibid., pp. 47-48.
[106] People vs. Sion and Bisu, GR No.
109617, August 11, 1997.
[107] See warrant of arrest in records, Vol. I, p. 43. Note the signatures of the above-named
appellants at the back of the warrant.
[108] See Records, Vol. I, p. 45.