THIRD DIVISION

[G.R. No. 121668. June 20, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOEL TAÑEZA y DACAL, accused-appellant.

D E C I S I O N

GONZAGA-REYES, J.:

Before us is an appeal from the decision of the Regional Trial Court of Sultan Kudarat, Branch 19[1] in Criminal Case Nos. 2156 and 2157, convicting herein accused-appellant of the crime of murder and acquitting him of the charge of illegal possession of firearm under Presidential Decree No. 1866[2] (hereafter, "P.D. 1866").

Reproduced hereunder are the two separate Informations under which accused-appellant was charged:

Information in Criminal Case No. 2156

The undersigned First Assistant Provincial Prosecutor accuses Joel Tañeza y Dacal of the crime of Murder, committed as follows:

That on or about 12 o’clock noon of October 21, 1993, at Kalawag III, Municipality of Isulan, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a Caliber .38 revolver, with intent to kill, with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault and shoot one EMERSON UMANDAM with the use of the aforementioned weapon, thereby inflicting gunshot wounds upon the latter which directly caused his death.

CONTRARY TO LAW, particularly Article 248 of the Revised Penal Code of the Philippines.[3]

Information in Criminal Case No. 2157

The undersigned First Assistant Provincial Prosecutor accuses Joel Tañeza y Dacal of the crime of Illegal Possession of Firearm, committed as follows:

That on or about 12 o’clock noon of October 21, 1993, at Kalawag III, Municipality of Isulan, Province of Sultan Kudarat, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and feloniously have in his possession and control One (1) Homemade Caliber .38 Revolver, carried by him outside his residence without first having obtained the necessary license to possess and/or permit to carry the said firearm from the proper authorities concerned and having used the said firearm in the commission of the crime of murder.

Contrary to law, particularly Section 1 of Presidential Decree No. 1866, Otherwise Known as "Codifying the Laws on Illegal, Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives and Imposing Stiffer Penalties For Certain Violations Thereof and for Relevant Purposes."[4]

On arraignment, accused-appellant pleaded not guilty to both charges. On June 27, 1994, the trial court ordered a joint trial of Criminal Case Nos. 2156 and 2157.

The evidence of the prosecution may be summarized as follows:

SPO1 Rogelio Docil was at the tricycle terminal in the public market of Isulan, Sultan Kudarat on October 21, 1993 at about 12 o’clock noon. Suddenly, he heard a "burst of gunshots" from the nearby Lucky Ace Bakery, which was about nine to ten meters away. Being a peace officer (although he was then off-duty and was not in uniform), he immediately proceeded to the direction of the gunfire where he saw accused-appellant pointing a gun at Emerson Umandam, who was in a squatting position and holding to his stomach. As SPO1 Docil arrived, Umandam turned to him and said, "Tabangi ako, dal-a ako sa hospital." (Help me, bring me to the hospital.) When prompted to describe victim and accused’s relative positions, SPO1 Docil said that accused was standing about three to four meters away from the victim; accused was already outside of the bakery while victim was inside, in-between two bread display counters. Accused-appellant held the gun by his right hand, while his left hand supported the right hand as he pointed it at the victim.

SPO1 Docil approached accused-appellant and took the gun from his hand. He identified himself as a police officer. He then instructed a tricycle driver to take the victim to the hospital, then brought accused-appellant to the police station for investigation.

At the Isulan police station, SPO1 Docil endorsed accused-appellant to SPO4 Eliseo Tatel, the desk officer at the time. He also turned over to SPO4 Tatel the homemade .38 caliber snub-nose revolver recovered from accused-appellant, and four empty shells that were extracted from the gun’s chamber. When SPO4 Tatel asked accused-appellant if he had a license or permit to carry the gun, he replied that he had none.

Aida Esgrina, the proprietress of Lucky Ace Bakery, testified to having witnessed the shooting of Emerson Umandam. She stated that Umandam was a long-time employee of hers; he was employed for five years at her bakery in Cotabato City before he moved to other jobs, such as being a baker in accused-appellant’s bakery, also in Isulan, Sultan Kudarat. In July 1993 Esgrina re-employed him as a baker and delivery man at the Lucky Ace Bakery.

On the day of the shooting, Esgrina was sitting behind the counter of Lucky Ace Bakery when she noticed accused-appellant outside, about four meters away. The victim, Emerson Umandam, was sleeping on a rattan reclining chair by the door of the bakery, exhausted from a morning’s work of selling bread in the barrios. The rattan chair on which Umandam slept was facing the doorway of the bakery, but Umandam had his face turned to the wall. Esgrina testified that accused-appellant entered the bakery and drew a gun from his waist, then fired two shots at Umandam --- the first shot hit him on the right breast, the second on the stomach. After the first two shots were fired, Esgrina screamed, "Tama na! Tama na!" Accused-appellant fired two more shots, this time while the victim was standing and clutching his stomach. He attempted to fire a fifth time but the gun did not discharge; instead he struck the victim on the head with the gun.

Esgrina stated that she knew accused-appellant, as he talked to her on two separate occasions prior to the shooting incident. She was unaware of any dispute between accused-appellant and Umandam.

In her testimony, Esgrina also claimed that she recovered an empty .38 caliber shell from under a table inside the bakery, presumably from the gun of accused-appellant, which she turned over to SPO4 Jacinto Parcon the next day.

At around 1:30 in the afternoon of October 22, 1993, Esgrina visited Umandam at the Intensive Care Unit of the Sultan Kudarat Provincial Hospital, where she found the latter being interviewed by SPO4 Parcon. This interview was reduced into writing,[5] to which Umandam affixed his right thumbmark; Esgrina signed the statement as witness. In the statement, Umandam points to accused-appellant as the perpetrator of his injuries. Umandam died on October 23, 1993.[6]

Esgrina declared that she was the one who spent for the hospitalization expenses of Umandam, as well as for the funeral and wake costs. Although she estimated the costs to have reached P70,000.00, only the amount of P43,029.95 had corresponding receipts.

Dr. Eladio Figuracion, resident physician at the Sultan Kudarat Provincial Hospital, testified to having treated a patient by the name of Emerson Umandam at around 12:45 in the afternoon of October 21, 1993. The patient sustained multiple gunshot wounds, which Dr. Figuracion assessed to be fatal; thus, he decided to conduct an emergency operation to save the patient’s life. Umandam died at the hospital two days later. The doctor counted about five gunshot wounds on the body of the victim. In open court, he identified the medical certificate[7] and death certificate as having been duly prepared by him.

Maria Umandam, mother of the victim, testified that their family experienced great anxiety and suffering as a result of her son’s death, and demanded moral damages in the amount of P80,000.00.

For his part, accused-appellant interposed that the killing of Umandam was done in self-defense. In his testimony, accused-appellant admitted to knowing Emerson Umandam, the latter having worked as a former delivery man in his bakery at Jamison Street, Kalawag II, Isulan, Sultan Kudarat. At about 11:40 in the morning of October 21, 1993, he was informed that the light guard of his motorcycle was taken by Umandam. Along with Rodrigo Susalta, an employee in his bakery, they proceeded in his motorcycle to the Lucky Ace Bakery where Umandam worked. Accused-appellant parked his motorcycle about 10 to 15 meters from Lucky Ace Bakery. Umandam was allegedly standing by the doorway of the bakery as he approached. When confronted on why he took the light guard of the motorcycle, Umandam allegedly retorted that the light guard was owned by him; accused-appellant answered that this was true, but that Umandam owed him P2,000.00. An altercation ensued; Umandam purportedly drew a hand gun from his waist and the two grappled for its possession, whereupon accused-appellant was able to get hold of the gun and it accidentally discharged --- he could not recall how many shots were fired.

Accused-appellant also maintains that he voluntarily surrendered to SPO1 Docil --- that after taking possession of the revolver, he was about to leave when he saw the policeman approaching and he surrendered the gun to the latter. Also, when SPO1 Docil asked him who the owner of the gun is, he answered that it was owned by Emerson Umandam.

Rogelio Susalta corroborated the story of accused-appellant. He claimed that he went with accused-appellant to the Lucky Ace Bakery but that he stayed by the motorcycle which they parked on the shoulder of the road, about 10 to 15 meters from the bakery and on the same side of the road as the bakery. From this distance he saw accused-appellant and the victim argue heatedly, then the victim drew a gun and the two wrestled for possession of the gun. Moments later, he heard about three or four gunshots. He stressed that accused-appellant did not point a gun at the victim, neither was the latter sleeping on the rattan chair when accused-appellant arrived.

Rovaldine Sindol testified that at about 12:00 in the afternoon of October 21, 1993 he was at the public market of Isulan and was passing by the Lucky Ace Bakery when he noticed two men arguing. He went on walking when he heard three to four gunshots from the bakery, and when he turned he saw accused-appellant "moving back", then he saw accused-appellant hand over "a certain thing" to a police officer. Early in his testimony Sindol said he did not know what had been handed to the policeman, but later on he stated that he recognized the "thing" to be a gun.

The trial court found Rovaldine Sindol’s testimony fraught with material inconsistencies and wanting in credibility. It also met with disbelief the account of Rodrigo Susalta, who allegedly witnessed the incident 10 to 15 meters away from the bakery and while standing on the same side of the road as the bakery. It also observed that "(b)oth witnesses for the defense could not even declare categorically that they saw the deceased victim holding or drawing a gun."[8]

The trial court likewise gave no credence to accused-appellant’s plea of self-defense, observing that such defense is belied by the number of wounds found on the victim’s body; furthermore, it was invoked only during trial and not upon his apprehension right after the incident. In the trial court’s words: "A protestation of innocence or justification would have been the logical and spontaneous reaction that the accused would have done to show that he merely acted in self-defense when he committed the crime imputed against him in this case."[9] On the other hand, it observed that the testimony of Aida Esgrina was not successfully rebutted by the defense, and on the basis of that testimony it is clear that the victim was attacked while he was asleep, with his face turned to the wall, and obviously unable to defend himself. Hence, the trial court ruled that treachery was clearly established and convicted accused-appellant of murder.

The trial court also stated that the statement of Emerson Umandam taken down by SPO4 Parcon "could validly be considered as a dying declaration and is admissible in evidence as part of the res gestae."[10]

As for the charge of illegal possession of firearm, the trial court meted out a judgment of acquittal for failure of the prosecution to prove that accused-appellant had no license or permit to possess the .38 caliber revolver recovered from him. It stressed that proof that the gun is unlicensed may not be dispensed with, as it is an essential ingredient of the offense of illegal possession of firearm.

Thus, the dispositive portion of the decision of the trial court reads:

WHEREFORE, upon all the foregoing considerations, the Court finds the accused, Joel D. Tañeza, guilty beyond reasonable doubt of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code.

Accordingly, applying the Indeterminate Sentence Law, the Court hereby sentences:

In Criminal Case No. 2156

1. the accused, Joel D. Tañeza, to suffer the penalty of reclusion perpetua;

2. the accused, Joel D. Tañeza, to indemnify Aida Esgrina the amount of Forty Three Thousand Twenty Nine Pesos and Ninety Five Centavos (P43,029.95), as actual damages she incurred in connection with the medical treatment, hospital bills, wake, burial and funeral services rendered to the deceased victim, Emerson Umandam;

3. The accused, Joel D. Tañeza, to indemnify the heirs of the deceased victim, Emerson Umandam:

(a) the amount of P10,000.00 as moral damages;

(b) the amount of P5,000.00 as exemplary damages;

(c) the amount of P50,000.00 as statutory indemnity for the death of the said deceased victim; and to pay the costs.

The homemade .38 caliber snub-nose revolver (Exh. "A") is hereby confiscated and forfeited in favor of the Government, and (shall) be disposed of in accordance with law.

Being a detention prisoner, the accused is entitled to full credit of the entire period of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code, as amended by R.A. No. 6127, provided he had agreed in writing to abide, by the same disciplinary rules imposed upon convicted prisoners, otherwise, with only four-fifths (4/5) thereof.

For want of sufficient evidence to prove the guilt of the accused, Joel D. Tañeza, beyond reasonable doubt of the crime of Illegal Possession of Firearm in Criminal Case No. 2157, the said accused is hereby ACQUITTED, with costs de oficio.

IT IS SO ORDERED.[11]

Appealing from his conviction for murder, accused-appellant alleges before us that the trial court erred in: (1) giving probative value to the testimony of Aida Esgrina despite its numerous inconsistencies and disregarding accused-appellant’s defense, which was amply corroborated by two witnesses; (2) giving credence to the ante mortem statement allegedly made by the victim; and (3) convicting accused-appellant of murder despite the fact that his guilt was not proven beyond reasonable doubt; at the very least, the conviction should have been for homicide only.[12]

Accused-appellant points to the fact that Esgrina’s testimony conflicts with the medico-legal report of Dr. Figuracion as well as the physical evidence, for while Esgrina stated that the victim was shot four times, the autopsy indicated at least five gunshot wounds and only four empty shells were submitted in evidence by the prosecution. Furthermore, there is no indication of head bruises in the autopsy report as to coincide with Esgrina’s representation that she saw accused-appellant strike Umandam on the head with the gun.

Even as Esgrina’s eyewitness account does not tally to the last detail with the findings in the medico-legal report, we do not perceive such inconsistencies as materially affecting the substance of her testimony. Inconsistencies such as these in the testimonies of prosecution witnesses have been known to happen, and indeed acquittals have been the result where the inconsistencies and self-contradictions dealt with material points as to altogether erode the credibility of the witness. On the other hand, discrepancies which are minor in character may also serve to add credence and veracity to a witness’s testimony[13], and enhance her credibility in the process. The latter rule we find applicable to the instant case, for the inconsistencies pointed out by the defense do not alter the substance of Esgrina’s testimony --- which is that accused-appellant attacked a defenseless Emerson Umandam.

Besides, the credibility of Aida Esgrina as a prosecution witness has passed the scrutiny of the trial court, which evaluation we receive with highest respect because such court had the opportunity to directly observe the demeanor of the witnesses on the stand.[14] The task of determining who to believe between the witnesses of the prosecution or defense is chiefly the province of the lower court, and this rule we observe in the herein case where there is no indication that patent inconsistencies have been overlooked or that the conclusions reached were clearly unsupported by the evidence.[15] Moreover, there is no showing on the records, nor allegation on the part of the defense, of any ill motive as may be harbored by Esgrina in making such testimony.

Coming now to the second assignment of error, accused-appellant seeks to cast doubt on the ante mortem statement[16] of the victim, saying that Umandam could not possibly have dictated a statement to SPO4 Parcon if the testimony of Dr. Figuracion, that Umandam could not speak clearly when admitted to the hospital, is to be believed.

We see no reason to doubt that the written statement submitted by the prosecution consitutes a faithful transcript of the interview by SPO4 Parcon of the victim. Not only does the document bear the thumbprint of Emerson Umandam, but it was also signed by a witness, Aida Esgrina, who identified the document in court and testified to her presence when Umandam affixed his thumbprint thereto.[17] To our mind, the more substantial issue to be addressed is whether the said statement meets the evidentiary requirements of a dying declaration.

The requirements for the admissibility of an ante mortem statement are: (1) it must concern the crime and the surrounding circumstances of the declarant’s death; (2) at the time it was made, the declarant was under a consciousness of impending death; (3) the declarant was competent as a witness; and (4) the declaration was offered in a criminal case for homicide, murder or parricide in which the decedent was the victim.[18]

By the evidence before us we sustain the holding of the trial court that the statement of Emerson Umandam may be validly considered as a dying declaration. Although it may not be ascertained from the written statement itself[19] whether Umandam was speaking with a consciousness of impending death, we have held in a number of cases[20] that even if a declarant did not make a statement that he was on the brink of death, the degree and seriousness of the wounds and the fact that death supervened shortly afterwards may be considered as substantial evidence that the declaration was made by the victim with full realization that he was in a dying condition. The contents of Umandam’s statement convey to us that he was experiencing extreme pain; he sustained multiple injuries in vital organs of the body[21] and underwent emergency surgery, and he died the day after he executed the statement.

On the third assignment of error, accused-appellant would have us hold that his version of the incident deserves more credence than the prosecution’s, or that, at the very least, he be convicted for homicide and not murder. However, we find no reason to disturb the factual findings of the trial court, particularly on the credibility of Aida Esgrina and the other prosecution witnesses, for the same are consistent with our own perusal of the evidence on record. We also find the crime to be rightly qualified to murder by treachery, as is evident from the fact that accused-appellant fired upon the victim while the latter was sleeping, thus indicating a means consciously adopted to effectively deprive the victim of a chance to defend himself or retaliate.[22]

The presence of treachery having been effectively established, accused-appellant’s theory of self-defense must necessarily fail. Other than accused-appellant’s self-serving statements, there is no evidence to show unlawful aggression on the part of Emerson Umandam. Furthermore, the number of gunshot wounds on the victim’s body altogether disprove a theory of self-defense.[23]

The crime having been committed during the suspension of the imposition of the death penalty and before the effectivity of Republic Act No. 7659, and there being no mitigating or aggravating circumstances, we uphold the penalty of reclusion perpetua imposed by the trial court.[24] We affirm the award of moral damages for having been supported by testimony and pursuant to Article 2206(3) of the Civil Code, but reverse the granting of exemplary damages. Under Article 2230 of the Civil Code, exemplary damages in criminal cases may be imposed "when the crime was committed with one or more aggravating circumstances."[25] There being none in the herein case, the award of exemplary damages must be deleted.

WHEREFORE, the decision of the Regional Trial Court (Branch 19) of Sultan Kudarat is hereby AFFIRMED with modification, and accused-appellant Joel Tañeza y Dacal is declared GUILTY beyond reasonable doubt of the crime of murder. He is ORDERED to suffer the sentence of reclusion perpetua, to pay Aida Esgrina the amount of P43,029.95 as actual damages, and to pay the heirs of the victim Emerson Umandam the amount of P50,000.00 as civil indemnity and P10,000.00 as moral damages. The award of exemplary damages is deleted for lack of legal basis.

SO ORDERED.

Melo, (Chairman), Panganiban, and Purisima, JJ., concur.

Vitug, J., abroad, on official business.

---

[1] Written by Judge German M. Malcampo.

[2] "Codifying the Laws on Illegal, Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives and Imposing Stiffer Penalties For Certain Violations Thereof and for Relevant Purposes."

[3] Records of the Case, 36.

[4] Reproduced in RTC Decision; Rollo, 21.

[5] Exh. "H"; Records of the Case, 9-11.

[6] Per Exh. "G", Certificate of Death; Records of the Case, 14. The medico-legal certificate, however, indicates that the patient expired on October 22, 1993.

[7] The medico-legal certificate lists the following findings:

"Gunshot wound supraclavicular area right upper quadrant, paraumbilical area; left deltoid area; PAL left.

Post-Operative Dx:

Gunshot wound, multiple, left deltoid, left mid-clavicular, LUQ abdomen (2 points) penetrating, lacerations left and right lobe liver, perforating jejonum (5 points) right transverse colon, laceration messenteric vessels, hemo and pneumothorax bilateral, hemoperitoneon.

Surgical Operation Done:

Explor-laparotomy, resection and jejonum, hepatorraphy right and left lobe, primary repair T-colon, peritoneal lavage and drainage, thorasectomy tube insertion, bilateral.

Patient’s condition on date attended: Serious" (Records of the Case, 13.)

[8] RTC Decision; Rollo, 54.

[9] Ibid., citing People vs. Maruhum, 132 SCRA 118; Rollo, 50.

[10] RTC Decision; Rollo, 49.

[11] RTC Decision; Rollo, 54-56.

[12] Accused-Appellant’s Brief; Rollo, 102-103.

[13] People vs. Llaguno, 285 SCRA 124; People vs. Baccay, 284 SCRA 296.

[14] People vs. Aquino, 284 SCRA 369; People vs. Baccay, supra.

[15] People vs. Aquino, supra; People vs. Agbayani, 284 SCRA 315,

[16] The written statement of Emerson Umandam as dictated to SPO4 Parcon reads ---

xxx

Q: Why are you here now confined at Sultan Kudarat Provincial Hospital?

A: I was shot five times by one Joel Tañeza.

Q: Where did this incident happened (sic)?

A: At Lucky Ace Bakery, Public Market, Isulan, Sultan Kudarat.

Q: By the way, will you please state your name, age, civil status and other personal circumstances?

A: Emerson Umandam y Moncawil, 25 years old, married, alias Nelson, bread delivery man of Lucky Ace Bakery, and a resident of Barangay Dansuli, Isulan, Sultan Kudarat.

Q: What caused why (sic) this Joel Tañeza shot you?

A: I would like to ask you, sir, to please do not ask me meantime I feel pain of my wounds (sic).

Q: Are you willing to sign this statement of yours freely and voluntarily under oath to the truthfulness of the same?

A: Yes, sir. I would like to ask you, sir, that charges be filed in court against this Joel Tañeza. xxx (Records of the Case, 11.)

[17] TSN, July 29, 1994, 10.

[18] People vs. Nialda, 289 SCRA 521; People vs. Bergante, 286 SCRA 629; People vs. Viovicente, 286 SCRA 1.

[19] See note 13.

[20] People vs. Maramara, G.R. No. 110994, October 22, 1999; People vs. Ebrada, 296 SCRA 353.

[21] See note 7.

[22] People vs. Labino, G.R. No. 123071, October 28, 1999; People vs. Castillo, 289 SCRA 213.

[23] People vs. Umadhay, 293 SCRA 545; People vs. Cañete, 287 SCRA 490.

[24] Conformably with People vs. Muñoz, 170 SCRA 107. See also People vs. Galano, G.R. No. 111806, March 9, 2000; People vs. Galam, G.R. No. 114740, February 15, 2000; People vs. Panaga, G.R. Nos. 125967-70, May 5, 1999.

[25] See People vs. Galam, supra.