THIRD DIVISION
G.R. No. 157221 --- People of the
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DISSENTING
OPINION
YNARES-SANTIAGO, J.:
In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.[1]
In
acquitting appellant Cesar Galvez (Galvez) based on reasonable doubt, the ponencia reasoned that: (1) conspiracy
was not alleged in the information, hence, Galvez could only be held
accountable for his individual acts; (2) the prosecution witnesses never saw
Galvez shoot the victim; and (3) the paraffin and ballistic tests yielded negative
results.
After a review of the evidence on record,
I submit that there is sufficient
evidence to hold Galvez liable for attempted
murder.
The
ponencia relied on the testimonies of
the principal prosecution witnesses, Wilfredo Rellios (Rellios) and Danilo
Perez (Perez), that they did not actually see Galvez shoot Enojarda. The ponencia
thus required no less than direct evidence to charge Galvez for the murder of
Enojarda, and totally disregarded the circumstantial evidence.
It must be stressed, however, that
direct evidence of the commission of the offense is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt.[2] Conviction can be had on the basis of
circumstantial evidence provided that: (1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proven; and (3) the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.[3] While no general rule can be laid down as to
the quantity of circumstantial evidence which will suffice in a given case, all
the circumstances proved must be consistent with each other, consistent with
the hypothesis that the accused is guilty, and
at the same time inconsistent with the hypothesis that he is innocent, and
with every other rational hypothesis except that of guilt.[4] The circumstances proved should constitute an
unbroken chain which leads to only one fair and reasonable conclusion that the
accused, to the exclusion of all others, is the guilty person.[5]
The case of Baleros, Jr. v. People[6]
is instructive with respect
to the positive identification of the culprit through circumstantial evidence, to
wit:
Positive
identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may identify a
suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This
constitutes direct evidence. There may,
however, be instances where, although a witness may not have actually witnessed
the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the
victim immediately before and right after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence. In
the absence of direct evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are usually committed
in secret and under condition where concealment is highly probable. If direct
evidence is insisted under all circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or secluded places will be hard, if not
well-nigh impossible, to prove.[7] (Emphasis
supplied)
In the instant case, Rellios and
Perez testified that on
Q: While you were taking your merienda a
little bit outside from the copra kiln, what happened next?
A: When Rosalio Enojarda stood up to drink
water we heard shots.
Q: x x x [W]hat happened to Rosalio
Enojarda?
A: He was hit, sir.
Q: How do you know that he was hit?
A: Because he shouted “Dan ya tupa
comigo,” meaning “Dan [referring to the other prosecution witness Danilo Perez]
I was hit.”
Q: As a result of the shots that you heard
and according to you your companion Rosalio Enojarda was hit, what did you do?
A: We dropped to the ground.
Q: x x x [W]hat did you do next?
A: I crawled, sir. x x x
Q: When
you were in a crawling position what happened?
A: When
I was on that position I saw Cesar Galvez holding his gun firing at us.
COURT:
(To the witness) How far was he when you saw him shooting at you?
A: Around five (5) meters Your Honor.
Q: In
other words he was pointing his gun at you?
A: Yes,
to all of us.
Q: Were you together with your companions
when crawling?
A: No, your Honor, we were separated.
Q: How
do you know they were being fired upon?
A: Because
I saw him shooting at us.
FISCAL
GENERALAO: (Continuing) x x x How were you able to recognize him holding an
armalite?
A: The moon was bright, sir. x x x
Q: Aside from the accused, Cesar Galvez,
can you tell the Court whether he was alone that time?
A: He had companions, sir.
Q: Were you able to recognize the
companions?
A: No sir.
COURT (To the witness): Did you see what
kind of firearms they were bringing?
A: No
Your Honor because they were far.
Q: How
far?
A: (Witness
pointed to the door of the courtroom which has a distance of approximately nine
(9) meters)
Q: In
other words you were able to identify Cesar Galvez bringing an armalite rifle?
A: Yes, Your Honor.
FISCAL
GENERALAO: (Continuing) You stated there were several shots that you heard, is
that correct?
A: Yes sir.
Q: How do you know there were several
shots?
A: I heard many shots, sir.
Q: Aside
from the shot that hit Rosalio Enojarda where else were (sic) hit, if you know?
A: On
the wall and the roof of the coconut kiln.
Q: After you recognize Cesar Galvez about
five meters away from you, what else did Cesar Galvez do, if any?
A: They left the place.[8] x x x
COURT:
(To the witness) You said earlier when you heard the shot you immediately dived
and crawled?
A: Yes, Your Honor.
Q: And you saw the accused after you
already crawled inside the copra kiln?
A: Yes.
Q: For
how long have you seen the accused after the burst of [gun]fire?
A: More
or less five minutes.[9]
(Emphasis supplied)
Rellios positively saw Galvez but he
could not identify the other three armed malefactors because they were farther
away. About 20 to 25 minutes from the time he heard the first burst of
gunfire and after the gunfire had already stopped, Perez also saw Galvez, armed
with an M16 armalite rifle and wearing a fatigue uniform, along with three
armed companions, pass by the bushes where he was hiding.[10]
The testimonies of Rellios and Perez
sufficiently established the presence of Galvez at the scene of the crime. Both also categorically declared that Galvez was
one of the four armed malefactors who attacked them and their companions that
fateful night in the copra kiln resulting in the death of Enojarda. Indeed, Rellios and Perez did not see the
persons who fired upon their group during the first burst of gunfire which fatally
hit Enojarda; however, considering all the attendant circumstances, I find no
other rational conclusion except that it was Galvez and his three armed
companions who shot them.
There is no doubt that Galvez was
present at the scene of the crime. Five
minutes after the first burst of gunfire, he was seen armed with an armalite
rifle and shooting in the direction of the copra kiln. He not only failed to explain and justify his
presence at the crime scene and his act of shooting in the direction of the copra
kiln, but raised the defense of alibi which was inherently weak and remained
uncorroborated.[11] He also refused to give his statement despite
being summoned three times by the police.[12] It is also worth noting that Perez, one of the
prosecution witnesses who positively identified Galvez, was a cousin of the
latter. The Court of Appeals found no
ill-motive on the part of Perez, hence his positive identification of Galvez is
all the more convincing and credible.[13]
The combination of the aforementioned
circumstances leads to no other conclusion than that Galvez was among the four armed
malefactors who fired upon Enojarda and company at the copra kiln resulting in
the death of Enojarda. Lamentably, the
prosecution charged Galvez in the information as the lone principal for the
murder of Enojarda.[14] As
noted by the ponencia, the failure to allege conspiracy in the
information renders the indictment insufficient to hold one accused liable for
the individual acts of his co-accused and that each of them would be held
accountable only for their respective participation in the commission of the
offense in consonance with our rulings in People
v. Tampis[15] and People v. Quitlong.[16] More so in the instant case where the three
John Does were not indicted. Consequently, even if the evidence tends to
show that Galvez acted in conspiracy with the three John Does during the
shooting incident, he cannot be made liable for the acts of the three John
Does.
I submit, however, that the
prosecution’s failure to allege conspiracy would not completely absolve Galvez
from any liability. For sure, Galvez
cannot be held liable for the acts committed by the three John Does, but he may
definitely be made to answer for the consequences of his own act. On this point, the case of People v. Narciso[17] is instructive.
In Narciso, Rufino Peña along with Francisco Celso, Elias Gloria and
Ramon Narciso were charged with murder for the death of Roberto Monreal. However,
the prosecution failed to allege conspiracy in the information charging the
four accused. During the course of
the trial, the case was dismissed as against Celso while Gloria escaped prison
and Narciso died. Thus, the case
proceeded as against Peña only. The
trial court convicted Peña for murder and sentenced him to death. On automatic review, this Court ruled –
All
the foregoing considered, there is no room for doubt that accused Rufino Peña
participated in the clubbing of Roberto Monreal inside Cell 2-A of the city
Jail of
x x x The last wound
was never described as fatal by the medico-legal officer, both in his necropsy
report and in his testimony during the trial. And this wound, the way We look
at it, could have been the one caused by the accused Rufino Peña when he
delivered the first blow upon the victim, considering the evidence that at the
time the victim was lying on his back (tihaya) and the face was then covered
with the blanket. The fatal wounds at the back of the head may reasonably be
attributed to the succeeding blows delivered by any of the other accused who,
as seen by the eyewitness, struck at the victim while the man was laying on his
belly (nakadapa) with the head already exposed.
x x x [I]f this were so, then it would be safe to conclude that the superficial
wound was the one that may alone be attributed to accused Rufino Peña, considering the circumstances that there
was no allegation of conspiracy in the information, and the defense had
seasonably made objections to the introduction of evidence tending to prove
conspiracy, and which objections were all sustained by the trial court. Neither
did the court below make any finding of conspiracy in the decision under
review; for on the contrary it declared:
“. . . It should be
noted that in default of an allegation of conspiracy, the herein accused is not
found responsible for the acts of his co-accused as his conspirators, but for
his individual participation for the death of the victim.”
Rufino Peña should,
therefore, be held liable only for the consequences of his own act – that of
inflicting upon the person of the victim the superficial wound above-mentioned.
Intent
to kill is apparent on the face of Rufino Peña’s own confession, but he failed
to hit the victim mortally, either because of his poor aim or because he failed
to apply the degree of force necessary. Whatever the real cause is, there is no
doubt that the injury he inflicted upon the victim could not have produced the
intended killing as a consequence; hence, the stage of execution insofar as
accused Peña is concerned, was merely attempted.[18] (Emphasis
supplied)
Preliminarily,
it might be noted that in the Narciso case,
all of the four accused were charged in a single information while in the
instant case Galvez is charged as the lone principal in the information. This difference is, however, immaterial considering
that the Court in Narciso ruled that
the failure to allege conspiracy in the information would only make each
accused liable for his individual participation in the commission of the offense.
Stated differently, the Court treated
the four accused in Narciso as if
they were individually charged in separate informations which is analogous to
the instant case where Galvez is charged as the lone principal in the
information.
Due to the failure of the prosecution
to allege conspiracy and indict the three John Does in the information, the
critical point of inquiry is Galvez’ individual participation in the killing of
Enojarda, i.e., whether the evidence prove
beyond reasonable doubt that Galvez was the one who shot and fatally wounded
Enojarda.
I submit that there is reasonable
doubt as to whether Galvez inflicted the fatal gunshot wound.
The presence of Galvez’ three armed companions
creates reasonable doubt as to who among them fired the bullet which killed
Enojarda. Any one of them could have inflicted
the fatal gunshot wound during the first burst of gunfire. As a result, Galvez cannot be convicted of
murder.
However, even if the circumstantial evidence does not prove beyond
reasonable doubt that Galvez was the one who inflicted the fatal gunshot wound
on Enojarda, there is sufficient circumstantial evidence to hold that he was
one of the four armed malefactors who fired upon Enojarda during the first
burst of gunfire. Thus, insofar as Galvez is concerned, he may
be held liable for attempted murder similar to the penalty imposed on Peña in
the Narciso case.
None of the prosecution witnesses actually
saw Galvez shoot at Enojarda. However, “more
or less five minutes” after the first burst of gunfire, Galvez was positively
identified by Rellios as one of the assailants.
He was armed with an armalite rifle and was firing in the direction of
the copra kiln. This provides a
sufficient link in the chain of events with respect to time and place necessary
to implicate Galvez in the shooting of Enojarda.
The manner by which Galvez and his
three armed companions carried out the attack shows their intent to harm not
just Enojarda but all of the latter’s companions as well. To ensure the success of their murderous
assault, all members of Galvez’ group would have to simultaneously fire upon
the occupants of the copra kiln during the first burst of gunfire.
Galvez was identified by Rellios barely
five minutes after the first burst of gunfire as the person nearest to the
copra kiln. Because of his proximity,[19] Galvez
was in the best position to see, fire upon and hit Enojarda.
The gunfire started when Enojarda
stood up to drink water thereby exposing him to the attack. Given Galvez’s proximity to the copra kiln
vis-à-vis his companions, it would be illogical, unnatural and unreasonable for
us to conclude that Galvez watched and stood idly by for the first five minutes
while his three armed companions, who were farther away, shot at Enojarda. A more reasonable and logical interpretation
of the circumstances in the instant case would lead us to the fair conclusion that
Galvez actively participated throughout the shooting incident, i.e., (1) shooting, along with his three
armed companions, at Enojarda during the first burst of gunfire when the latter
was fatally hit; (2) shooting five minutes into the incident when he was
identified in the act of shooting in the direction of the copra kiln; and, (3) shooting
up until the gunfire died down.
Aside from the direct evidence which
established that Galvez was shooting in the direction of the copra kiln about five
minutes after the first burst of gunfire when Enojarda was fatally hit, the
evidence also showed that Enojarda died of hemorrhage due to one gunshot wound;[20]
that he was hit by a bullet at his left abdomen;[21]
and that the bullet came from an M16 armalite rifle.[22] Thus, it may be reasonably inferred that at
the time Galvez was seen shooting in the direction of the copra kiln, Enojarda
was on the copra kiln’s floor bleeding to his eventual death. This act of shooting when viewed as a
continuation of Galvez’ initial participation during the first round of gunfire
would, likewise, support a conviction for the attempted murder insofar as
Galvez is concerned because it was still possible for Galvez to hit Enojarda in
the head, heart or lungs while the latter lay bleeding on the copra kiln’s
floor.
Of course, it is always possible to hypothesize
that Galvez did not fire upon Enojarda because all that the direct evidence
show is that he was shooting in the direction of the copra kiln about five
minutes after the first burst of gunfire in the company of three armed
individuals. Yet, it must not be
forgotten that in a conviction based on circumstantial evidence, absolute
certainty is not required and that, in making reasonable inferences, we are always
guided by logic, reason and the common experience of humankind.
Under
American jurisprudence, various tests have been adopted to determine the amount
of circumstantial evidence necessary to justify a conviction in a criminal
case:
Although there are
a variety of tests by which courts assess the sufficiency of circumstantial
evidence, there appear to be factors in common among the tests, such as the
trier of fact's ability to decide among reasonable interpretations of the
evidence and the fact that the
evidence need not be absolutely
conclusive of guilt or demonstrate the impossibility of innocence. One such
test for the sufficiency of circumstantial evidence is whether, viewing the
evidence in the light most favorable to the people, and giving it the benefit
of every reasonable inference, the facts from which the inference of
defendant's guilt are drawn are inconsistent with innocence and exclude, to a
moral certainty, every other reasonable hypothesis. Another test, frequently stated
in conjunction with the first, is whether the evidence is strong enough to
exclude every reasonable hypothesis of innocence. Stated differently,
circumstantial evidence can provide the basis to support a conviction, but it
must be consistent with the defendant's guilt and inconsistent with any other reasonable
conclusion, or so strong and convincing as to exclude every reasonable
hypothesis except the defendant's guilt and must exclude any reasonable
hypothesis of defendant's innocence.[23]
(Emphasis supplied)
In other words, a possible hypothesis of innocence cannot
be the basis for acquittal but only some reasonable
hypothesis thereof. This is but a
logical consequence of the basic precept that in all criminal prosecutions, the
prosecution must prove all the elements of the offense beyond reasonable doubt.
As a corollary, acquittal will not lie
based on a mere possible or imaginary doubt. Rather, any doubt as to the guilt of an
accused must always satisfy the reasonable doubt standard.
Thus, I find that the circumstantial
evidence in the instant case proves beyond reasonable doubt that Galvez was one
of the four armed malefactors who fired upon Enojarda during first burst of
gunfire. Further, his intent to kill may
be deduced from the kind of weapon he used as well as the manner of shooting he
employed. Treachery is, likewise,
present due to the suddenness of the attack and the use of the cover of
darkness in mounting the attack. Thus,
there is sufficient evidence to hold him liable for attempted murder only
because, as previously discussed, there is reasonable doubt as to whether he
inflicted the fatal gunshot wound on Enojarda.
Before discussing the proper penalty
to be imposed, I wish to address certain evidence interpreted by the ponencia as tending to establish the
innocence of Galvez, to wit: (1) the negative finding of the paraffin test, (2)
the negative finding of the ballistic test, and (3) the seeming lack of motive
on the part of Galvez in killing Enojarda.
The
ponencia gave weight to the negative
results of the paraffin test to establish that Galvez was not involved in the
shooting incident. It stated that the principle espoused by this
Court in People v. Pagal[24]
and People v. Teehankee, Jr.[25] to the effect that a negative finding
on a paraffin test is not conclusive proof that one has not fired a gun is not applicable to the instant case
because Galvez was not positively identified as the perpetrator of the crime. The ponencia
seems to imply that the aforesaid principle is only applicable to cases
where the accused was positively identified as the perpetrator of the crime,
and considering that Galvez was not positively identified, the negative result
of the paraffin test bolsters his claim that he did not shoot Enojarda.
Preliminarily,
it must be pointed out that Galvez was positively identified through
circumstantial evidence as one of the perpetrators of the crime. Be that as it may, the Court’s rulings in the Pagal and Teehankee, Jr. cases on the inconclusiveness of the paraffin test are not contingent on the positive
identification of the accused as the perpetrator of the crime. What this Court has long recognized is that
the paraffin test, by itself, is
inconclusive to establish whether a person did in fact fire a gun. Thus, it was in held in Teehankee, Jr. that –
“[S]cientific
experts concur in the view that the paraffin test has ‘x x x proved extremely
unreliable in use, and that the only thing it can definitely establish is the
presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone
that the source of the nitrates or nitrites was the discharge of a firearm.’ x
x x In numerous rulings, we have also recognized several factors which may
bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands
after firing the gun, wears gloves at the time of the shooting, or if the
direction of a strong wind is against the gunman at the time of firing.”[26]
In short, the negative finding of the
paraffin test cannot be used to prove either the guilt or innocence of an
accused because of the unreliability of the test itself. Thus, it would be erroneous to use the results
of this test to establish reasonable doubt as to the guilt of Galvez, as the ponencia did.
Neither can the negative ballistic
tests prove that Galvez did not participate in the shooting incident. The conduct of the aforesaid test was unreliable and irregular. Defense witness
Lemuel Caser, who conducted the ballistic examination, could not establish
whether the four empty shells compared with the test bullets fired from the M16
armalite rifle issued to Galvez by the Philippine National Police (PNP) were
recovered from crime scene or the cadaver of the victim. As to who collected the aforesaid empty shells
as well as when and where they were collected, he could not say.[27] Consequently, the ballistic test cannot be
given any probative weight.
Be that as it may, as correctly
pointed out by the Court of Appeals, the negative results of the ballistic
tests would not exculpate Galvez considering that he may have used a different
firearm in the shooting incident. On
this point, the ponencia argues that
it is the prosecution which has the burden of proving that Galvez used a
different firearm. I beg to disagree.
The ponencia might have
overlooked the fact that the prosecution, to begin with, never claimed that
Galvez used his PNP-issued armalite rifle during the shooting incident. Thus, even assuming arguendo that the ballistic test is reliable, the same cannot
exculpate Galvez because it does not absolutely foreclose the possibility that
he used another M16 armalite rifle during the shooting incident.
Finally, anent the seeming lack of
motive on the part of Galvez to kill Enojarda, the record shows that Perez
testified that he had no misunderstanding with Galvez and that he does not know
any motive why Enojarda was killed. However,
it must be pointed out that during the trial, the defense on the cross-examination
of Perez tried to establish that the location of the copra kiln in Lantawan,
Basilan was a “place of abductors.”[28] Further,
Perez admitted on cross-examination that he and his companions did not bring a
lamp while they worked and ate that fateful night in the copra kiln in order
not to attract attention to their group given the unstable peace and order
situation in that area.[29] Considering that Galvez was then an active member
of the police force and, in fact, he had just arrived from a military operation
a day prior to the shooting incident,[30]
and that he was seen clad in a fatigue uniform during the shooting incident, it
is not far fetched to surmise that the shooting may have been precipitated by
the erroneous assumption by Galvez and his three armed companions that Enojarda
and company were rebels or terrorists because the latter were spotted in the
copra kiln at so late at night and without a lamp. This is not to say, of course, that if the
latter were indeed rebels or terrorists, Galvez and his companions would be justified
in their attempt to massacre them. Instead,
it is merely to recognize the sad reality that protracted armed conflicts bring
out the worst in human beings and, more often than not, innocent civilians are
the casualties thereof.
The more important point to be made
is that motive is not as important in the instant case vis-à-vis other criminal
cases decided by this Court based on circumstantial evidence because Galvez was
seen firing in the direction of the copra kiln merely minutes after the first burst of gunfire when Enojarda was
fatally hit and fell to ground. Galvez’ motive in firing at Enojarda and
company is not as vital because his intent to kill, as reasonably deduced from
the circumstantial evidence, is readily apparent. Intent to kill and not motive is the essential
element of the offense on which his conviction rests.
Going now to the proper penalty, attempted
murder is punished by a penalty lower by two degrees than that prescribed by
law for the consummated felony which, in this case, is prision mayor. Applying the
Indeterminate Sentence Law and considering that no aggravating circumstances
were alleged and proved,[31]
nor can any mitigating circumstances be appreciated in favor of Galvez, the
minimum of the indeterminate penalty should be anywhere within the range of prision correccional, while the maximum
should be prision mayor medium. Galvez should further be required to pay the
heirs of Enojarda P50,000.00 as civil indemnity and P50,000.00 as
moral damages in accordance with prevailing jurisprudence.[32] In addition, he should be made to pay P25,000.00
as exemplary damage because the aggravating circumstance of armed band,
although not alleged in the information was proved during the trial, and the
offense was committed prior to the effectivity of the Revised Rules of Criminal
Procedure on December 1, 2000 in line with our ruling in People v. Catubig.[33]
In closing, it is worth noting that
the conclusions reached here are consistent with the constitutional right of
the accused to be presumed innocent as well as the concomitant burden of the
prosecution to prove the guilt of the accused beyond reasonable doubt – both of
which are rooted on the fundamental principle of due process in the Constitution.
However, like the accused, so too is the
State and the offended party entitled to due process such that when the guilt
of the accused is proved beyond reasonable doubt, his conviction must follow as
a matter of course. Indeed, the great
goal of our criminal law and procedure is not to send people to jail but to
render justice. This justice is,
however, always only for the deserving.
ACCORDINGLY, appellant
Cesar Galvez is found guilty of Attempted Murder and sentenced to an
indeterminate penalty the minimum of which is two (2) years and four (4) months
of prision correccional minimum and
the maximum of which is ten (10) years of prision
mayor medium. He should, likewise,
be ordered to pay the heirs of Enojarda P50,000.00 as civil indemnity, P50,000.00
as moral damages and P25,000.00 as exemplary damages.
CONSUELO
YNARES-SANTIAGO
Associate Justice
[1] Baleros, Jr. v. People, G.R. No. 138033,
[2] People v. Romua, 339 Phil. 198, 206
(1997).
[3] Rules of Court, Rule 133, Sec. 4.
[4] People v. Ludday, 61 Phil. 216, 221-222
(1935).
[5]
[6] Supra note 1.
[7]
[8]
TSN,
[9]
[10]
TSN,
[11] Galvez claimed that he was at his house, which is
about two to three kilometers from the copra kiln, at the time of the shooting
incident. However, as correctly found by
the trial court, Galvez’s alibi was inherently weak because his corroborating
witnesses, Wilhema Espinosa and SPO2 Danilo Ramillano, were biased for being
his neighbor and comrade-in-arms, respectively.
Galvez also failed to present his wife and father-in-law as
corroborating witnesses although he claimed that the latter were with him at his
house while the shooting incident was taking place at the copra kiln. This further casts doubt as to the veracity
of his alibi. Necessarily then, the
positive identification of Galvez by the two principal prosecution witnesses
must prevail over his self-serving alibi.
[12] Prosecution witness Pfc. Samuel Omoso, who was the
investigator assigned to the instant case, testified that in the ensuing
investigation of the shooting incident, he summoned Galvez three times but the
latter refused to give his statement:
Q: x x
x [D]id you summon the suspect [Galvez]?
A: Yes,
about three times.
Q: What
happened?
A: He
refused to give his statement. (TSN, October 11, 1993, p. 161)
Galvez’ repeated refusal to
participate in the ensuing investigation tends to show that his defense of
alibi was a mere afterthought and runs counter to this Court’s observation that
the first impulse of an innocent man, especially a police officer, when accused
of wrongdoing is to express his innocence at the first opportune time. [Report on the Financial Audit Conducted at
the Municipal Trial Courts of Bani, Alaminos, and Lingayen, in Pangasinan,
A.M. No. 01-2-18-MTC, December 5, 2003, 417 SCRA 106, 112; People v. Gallo, 419 Phil. 937, 946 (2001); People v. Castillo, 389 Phil. 51, 62 (2000); People v. Antonio, 391 Phil. 245, 254 (2000).]
[13] As correctly observed by the Court of Appeals:
Witness Wilfredo Rellios saw [Galvez] firing an
armalite rifle at their direction from the place where this witness was hiding,
a distance of about five (5) meters x x x. Another witness, Danilo Perez, saw
and was able to recognize [Galvez] by moonlight immediately after the firing
has stopped, when [Galvez] passed by him, clad in fatigue and holding an
armalite rifle, about two meters away from the bushes where this witness hid
himself x x x.
Aside
from corroborating each other’s testimony, there can be no mistake as to
Rellios’ and Perez’ identification of [Galvez].
Both of them know [Galvez] because all of them are residents of
Matarling, Lantawan, Isabela, Basilan. For sure, prosecution witness Danilo
Perez is even [Galvez’] cousin. In sum, these two principal prosecution
witnesses –Perez and Rellios – could not have been mistaken in identifying
[Galvez]. In the absence, as here, of any ill-motive on their part to falsely
impute unto [Galvez] the commission of such a serious offense of MURDER, their
identification becomes even more convincing. (Rollo, p. 191)
[14]
Parenthetically, the prosecution compounded its grievous error by failing to
charge Galvez in conspiracy with the three John Does for Attempted Multiple
Murder insofar as Rellios, Perez, and their two companions were concerned.
[15]
455 Phil. 371 (2003).
[16]
354 Phil. 372 (1998).
[17]
132 Phil. 314 (1968).
[18]
[19]
Rellios testified thus:
Q: You stated that the
accused was holding a gun, how far were you from him when you saw him?
A: More or less five
meters. x x x
Q: Aside from the
accused, Cesar Galvez, can you tell the Court whether he was alone that time?
A: He had companions,
sir.
Q: Were you able to
recognize the companions?
A: No.
COURT (To the witness): Did you see what kind of firearms they were
bringing?
A: No Your Honor because they were far.
Q: How far?
A: (Witness pointed to
the door of the courtroom which has a distance of approximately nine (9)
meters)
Q: In other words you
were able to identify Cesar Galvez bringing an armalite rifle?
A: Yes, Your Honor.
(Emphasis supplied) [TSN,
[20]
TSN,
[21]
TSN,
[22]
[23] AMJUR EVIDENCE § 1467.
[24]
338 Phil. 946 (1997).
[25]
319 Phil. 128 (1995).
[26]
[27]
TSN,
[28]
TSN,
[29]
[30]
TSN,
[31]
Although the information alleged that the killing was committed with evident
premeditation, the prosecution failed to prove the elements thereof. Further, as correctly found by the trial
court, even if the prosecution was able to prove the aggravating circumstance
of nocturnity and armed band, the same were not alleged in the information so
that they cannot be appreciated in computing the penalty to be imposed on
Galvez. Besides, nocturnity is absorbed in treachery.
[32] People v. Amazan, 402 Phil. 247, 270
(2001).
[33]
416 Phil. 102, 120-122 (2001); People v.
Calongui, G.R. No. 170566,