THIRD
DIVISION
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FERNANDO ESTABAS MAHAWAN alias PADO, Petitioner, - versus - PEOPLE OF THE Respondent. |
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G.R. No.
176609 Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ,
CHICO-NAZARIO, NACHURA, and REYES,
JJ. Promulgated: December
18, 2008 |
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CHICO-NAZARIO, J.:
In this
Petition for Review on Certiorari
under Rule 45 of the Rules of Court,[1]
petitioner Fernando Estabas Mahawan
alias Pado, seeks the reversal of the Decision[2] of
the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, which affirmed
in toto the
Decision[3] of
the Cebu City Regional Trial Court (RTC), Branch 10, in
Criminal Case No. CBU-42385, dated
The
records of the case bear the following facts:
On
The undersigned
Prosecutor I of
That on or about the 5th
day of October, 1995, about 9:30 p.m., in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, armed with a firearm, with deliberate intent and with intent to kill,
did then and there attack, assault and use personal violence upon the person of
Diosdada Paradero, by
firing shots at said Diosdada Paradero,
hitting her on the vital parts of her body, thereby inflicting upon her the
following physical injuries:
“GUNSHOT WOUND POINT OF
ENTRY 3rd ICS (LEFT) MCL. NO POINT OF EXIT, 4 PT. PERFORATION
DESCENDING COLON, GRADE II LIVER INJURY SEGMENT I, 1.5 CM. DIAPHRAGMATIC RENT
(LEFT) INCISED WOUND (LEFT) EAR LOBULE, (RIGHT) WRIST”
which injuries, under
ordinary circumstance, would cause the death of said Diosdada
Paradero, thus performing all the acts of execution
which would have produced the crime of homicide, but which nevertheless did not
produce it by reason of causes independent of the will of the herein accused,
that is, by the timely and able medical assistance rendered to said Diosdada Paradero which prevented
her death.
When
arraigned on
The
prosecution presented as witnesses private complainant Diosdada
S. Paradero (Paradero), Dr.
James Guardiario (Dr. Guardiario),
and Police Chief Inspector Myrna Arreola (Inspector Arreola). Their
testimonies, woven together, produce the following narrative:
Paradero is a resident of B. Aranas Extension,
On
Paradero’s sister
and some neighbors brought her to
Meanwhile, petitioner was brought by the police authorities to the
Cebu City Police Station for investigation. Thereupon, a paraffin test was conducted on
him by Inspector Arreola. The result of the test showed there was gun
powder residue on his right hand.
On
On
The prosecution adduced documentary pieces of evidence to buttress
the aforesaid allegations, to wit: (1) medical certificate of Paradero issued by Dr. Guardiario
(Exhibit A);[7]
(2) medical certificate of Paradero issued by the
chief of Vicente Sotto Memorial Medical Center (Exhibit B);[8]
(3) list of expenses and official receipts as regards Paradero’s
treatment and confinement for a gunshot wound (Exhibit C);[9]
(4) subpoena duces tecum issued
by the RTC to Inspector Arreola (Exhibit D);[10]
(5) physical science report on the paraffin test conducted on petitioner
(Exhibit E);[11] and
(6) letter-request for paraffin test on petitioner (Exhibit F).[12]
For its part, the defense presented the testimonies of petitioner
and his friend/neighbor named Antonio Artiaga (Artiaga) to refute the accusations against him. Petitioner disclaimed any liability and invoked
self-defense. His version of the incident,
as corroborated by Artiaga on some relevant points, is
as follows:
On
The defense likewise proffered the medical certificate of petitioner
to support his claims. The medical
certificate states that petitioner was treated for incised wounds on the left
finger and for abdominal abrasion.[14]
After trial, the RTC rendered a Decision convicting petitioner of
frustrated homicide, sentencing him to an indeterminate term of 6 years of prision correccional,
as minimum, to 10 years of prision mayor, as
maximum. He was also ordered to pay Paradero the amounts of P110,000.00 as actual
damages, P50,000.00 as exemplary damages, P9,000.00 as unearned
income, and P50,000.00 as attorney’s fees. The dispositive
portion of the RTC Decision reads:
WHEREFORE,
PREMISES CONSIDERED, this Court finds the accused FERNANDO ESTABAS MAHAWAN,
GUILTY of committing the crime of FRUSTRATED HOMICIDE. He is hereby sentenced
to suffer the indeterminate term of SIX (6) YEARS of PRISION CORRECCIONAL as
minimum to TEN (10) YEARS OF PRISION MAYOR as maximum thereto.[15]
Petitioner filed a motion for reconsideration[16]
of the RTC Decision but this was denied.[17]
Undaunted, he appealed to the Court of
Appeals.
On
I.
THE HONORABLE COURT OF APPEALS ERRED
IN CONCLUDING IN ITS QUESTIONED DECISION THAT ACCUSED-APPELLANT, PETITIONER
HEREIN, FAILED TO FIRMLY ESTABLISH THAT UNLAWFUL AGGRESSION PRECEDED HIS ATTACK
ON THE PRIVATE OFFENDED PARTY;
II.
COROLLARILY TO THE FOREGOING, BOTH
THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT LIKEWISE ERRED IN
CONCLUDING THAT THE SECOND AND THIRD ELEMENTS OF SELF-DEFENSE ARE WANTING IN
THE CASE AT BAR;
III.
THE HONORABLE COURT OF APPEALS
LIKEWISE ERRED IN NOT FINDING THAT THERE WAS NO INTENT TO KILL ON THE PART OF
ACUSED-APPELLANT, PETITIONER HEREIN;
IV.
BOTH THE HONORABLE COURT OF APPEALS
AND THE REGIONAL TRIAL COURT ERRED IN NOT APPRECIATING THE “EQUIPOISE DOCTRINE”
IN FAVOR OF THE ACCUSED-APPELLANT, PETITIONER HEREIN;
V.
THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING IN TOTO THE AWARD FOR
DAMAGES GRANTED BY THE
VI.
THE HONORABLE COURT OF APPEALS ERRED
IN DENYING ACCUSED-APPELLANT’S, PETITIONER HEREIN, EARNEST MOTION FOR
RECONSIDERATION WITHOUT CLEARLY SETTING FORTH THE FACTS AND
In the main, petitioner argues he should be acquitted because he
merely acted in self-defense when he shot Paradero
during the incident.
It is axiomatic that where an accused pleads self-defense, he
thereby admits authorship of the crime.
Accordingly, the burden of evidence is shifted to the accused who must
then prove with clear and convincing proof the following elements of self-defense:
(1) unlawful aggression on the part of the victim; (2) reasonable necessity of
the means employed to prevent or repel the attack; and (3) lack of sufficient
provocation on the part of the person defending himself. Although all three elements must concur,
self-defense must rest firstly on proof of unlawful aggression on the part of
the victim. If no unlawful aggression
attributed to the victim is established, there can be no self-defense, whether complete
or incomplete. Unlawful aggression is a
condition sine qua non for the
justifying circumstance of self-defense to apply.[21]
As an element of self-defense, unlawful aggression refers to an
assault or attack, or a threat thereof in an imminent and immediate manner,
which places the defendant’s life in actual peril. There is an unlawful aggression on the part of
the victim when he puts in actual or imminent danger the life, limb, or right
of the person invoking self-defense. There
must be actual physical force or actual use of weapon. To constitute unlawful aggression, the person
attacked must be confronted by a real threat on his life and limb; and the
peril sought to be avoided is imminent and actual, not merely imaginary.[22]
Petitioner asserts that the findings of the RTC and the Court of
Appeals are in contrast as to whether there was unlawful aggression on the part
of Paradero during the incident; that the Court of
Appeals erred in concluding that he failed to establish unlawful aggression on
the part of Paradero; that such conclusion
contradicts the RTC’s finding that there was unlawful
aggression on the part of Paradero; and that the RTC’s view is more consistent with the facts and evidence
on record as compared with the disquisition of the Court of Appeals.[23]
We shall first ascertain whether the findings of the RTC and the
Court of Appeals are contradictory as to whether petitioner failed to establish
unlawful aggression on the part of Paradero.
In support of his claim that the RTC found unlawful aggression on
the part of Paradero, petitioner quoted the following
excerpts[24]
from the RTC Decision:
This Court
cannot sustain private complainant’s claim that accused Mahawan,
for a flimsy reason that she had no more beer, would immediately enter her
store and shoot her with his firearm. x x x.
x x x x
Correspondingly,
this Court would find Mahawan’s claim that it was the
private complainant who attacked him first, to be in accordance with human
knowledge and experience of mankind, more so, that accused has a corroborative
witness in the person of Mr. Antonio Artiaga, who
testified that he saw private complainant holding a knife and was attempting to
stab the accused.
As can be gleaned from the
foregoing, the RTC believed petitioner’s allegation that it was Paradero who attacked first during the incident. It should be observed, however, that the RTC
does not specifically state or conclude that there was unlawful aggression on
the part of Paradero.
In the succeeding paragraph, the RTC categorically pronounced that
there was insufficient evidence to determine the unlawful aggressor during the
incident, thus:
In the case
at bar, there is insufficient evidence to determine who was the unlawful
aggressor from the start, which would qualify accused’s
claim of self-defense. It was thus held that:
“In
the absence of evidence showing that the victim was the unlawful aggressor at
the start, the law will consider the aggression as reciprocal between the
combatants.”[25]
The subsequent
disposition of the RTC implies that although the prosecution failed to show by
sufficient evidence that it was petitioner who first attacked Paradero, the defense likewise failed to establish that
unlawful aggression on the part of Paradero preceded
petitioner’s attack on her. This, in
effect, means that petitioner failed to discharge his burden of proving with
clear and convincing evidence that there was unlawful aggression on the part of
Paradero. This
conclusion was evident from the fact that the RTC disregarded petitioner’s
claim of self-defense and convicted the latter of frustrated homicide.[26]
The seemingly confusing statements in the RTC Decision may be a
mere result of inadvertence in the drafting of the same. Nevertheless, petitioner cannot capitalize on
such in arguing his case. He cannot pluck
and cite some portions of the RTC Decision which fit his defense and disregard
or omit those parts which are adverse to him. It should be borne in mind that the decision
of the court should be read and understood in its entirety.[27]
Given the foregoing, we rule that there is no contradiction
between the findings of the RTC and the Court of Appeals that petitioner failed
to establish unlawful aggression on the part of Paradero.
We shall now determine whether the findings of both courts that
petitioner failed to establish unlawful aggression on the part of Paradero were correct.
Paradero testified that on the night of
the incident, petitioner went to her store and asked for a bottle of beer. When she told petitioner that there was no
more beer, the latter entered her store, confronted her, and shot her with a
gun. There is nothing in the foregoing
which evinces unlawful aggression on the part of Paradero.
What is clear is that petitioner was the
aggressor during the incident. We have
carefully examined the testimony of Paradero and
found it to be credible and trustworthy. She testified in a clear and consistent manner
during the trial. She was faithful and steadfast
in recounting her ordeal despite the grueling cross-examination of the defense.
Besides, Paradero testified that petitioner was drunk
at the time of the incident. She also
declared that she had known petitioner since 1988 and that the latter had,
under the influence of alcohol, assaulted several persons.[28]
These circumstances reinforce the
allegation petitioner’s propensity for harming people when he gets drunk.
On the
other hand, petitioner narrated that when he went to Paradero’s store to buy cigarettes, the latter replied in a
loud voice that she did not have any stock of cigarettes. Paradero, then
holding a knife, suddenly went out of the store and attacked him. This testimony does not inspire belief. It is inconsistent with logic and human
experience that after Paradero told petitioner that
there were no more cigarettes, Paradero would
thereafter immediately attack petitioner. Precisely, there was no reason for Paradero to be angry and thereupon assault petitioner. It was petitioner who had more reason to be
angry and attack Paradero, because the latter had told
him in a loud voice that there were no more cigarettes. Petitioner alleged that Paradero
attacked him because she had a grudge against his wife’s relative named Dindo Ruiz. He also
claimed that Ruiz had been stabbed and killed by Paradero’s
bata-bata
(subordinates). These uncorroborated allegations
deserve scant consideration for being unsubstantiated and unsupported by
evidence.
The fact that petitioner sustained injuries on his hand and
stomach, allegedly caused by Paradero’s knife, does
not signify that he was a victim of unlawful aggression. The medical certificate presented by petitioner
states that the latter sustained incised wounds on the 2nd and 5th
fingers measuring 2 centimeters and abdominal abrasion measuring 2.5
centimeters. Petitioner was discharged on the same day he was treated in the
hospital.[29] It is clear from the foregoing that the injuries
he sustained were not serious or severe. The superficiality of the injuries was not indication
that his life and limb were in actual peril.[30]
In
stark contrast, Paradero sustained a gunshot wound on
the left chest. The trajectory of the
bullet hit and seriously injured her liver, colon and diaphragm. This caused her to undergo two surgical
operations. She also sustained wounds on
her left forearm, right wrist and left earlobe. Based on the foregoing, it is difficult to
believe that Paradero was the unlawful aggressor. The gravity, location, and number of wounds she
sustained belie self-defense on petitioner’s part.[31]
Hence,
the RTC and the Court of Appeals were correct in concluding that petitioner
failed to establish unlawful aggression on the part of Paradero.
Apropos
the second issue, petitioner maintains that the second element of self-defense,
which is reasonable necessity of the means employed to prevent or repel the
attack, was present in the instant case; that although he was younger, taller,
and heavier than Paradero, it does not mean that
there was no reasonable necessity on his part to shoot Paradero;
that the RTC and the Court of Appeals overlooked the fact that he was forced to
shoot Paradero because the latter had already stabbed
him twice and thus caused a wound on his belly measuring 4 centimeters; that
people react differently to a given situation, and that he merely acted under
the instinct of self-preservation; that any person placed in his situation
during the incident would do the same thing he did and would not risk the
chance of being stabbed for the third time or expose himself to unnecessary
danger; and that it was unfair to judge his act as totally and morally wrong.
Further,
petitioner avers that the third element of self-defense, which is lack of
sufficient provocation on the part of the person making the defense, was
present in the case at bar; and that he did not commit any act or omission
which provoked Paradero to attack him.[32]
The
second element of self-defense requires that the means employed by the person
defending himself must be reasonably necessary to prevent or repel the unlawful
aggression of the victim. The reasonableness of the means employed may
take into account the weapons, the physical condition of the parties and other
circumstances showing that there is a rational equivalence between the means of
attack and the defense.[33]
In the case
at bar, there was no reason or necessity for petitioner to shoot Paradero with a gun. Paradero was merely
tending her store and did not attack or place in danger the life of petitioner
during the incident. Even if we are to
adopt petitioner’s version of the incident, his act of shooting Paradero would not also be a reasonable and necessary means
of repelling the aggression allegedly initiated by Paradero.
As aptly observed by the RTC:
Indubitably, considering
the age, height, built and sex of the accused and the victim, the accused was
31 years old and about 5’9 to 5’10 in height and heavily built, while the
victim is frail and about 5’1, more or less, in height, the struggle for the
possession of the knife would be over in a few seconds and accused would be
able to disarm the victim. There is, therefore, no immediate need for the
accused to fire his gun to stop the victim from attacking him. Proof of this is
the knife presented by the accused in court which he had allegedly confiscated
from the private complainant.[34]
In
addition, petitioner was armed with a gun while Paradero
supposedly held a knife. Petitioner
should have fired a warning shot first to ward off Paradero
or, if the latter persisted in attacking, fired a shot at a non-vital portion
of her body in order to disable her instead of shooting her instantly in the
chest. Further, when Paradero
allegedly approached and tried to stab him, petitioner was not trapped or
cornered in a specific area such that he had no way out. He testified that he and Paradero
were outside the store during the incident. He could have run away and called the
neighbors or police for help. In short,
petitioner had other less harmful options than to shoot Paradero.
Indeed, petitioner’s act failed to pass the test of reasonableness of the
means employed in preventing or repelling an unlawful aggression.
As
we earlier found, petitioner shot Paradero when she
told him there was no more stock of cigarettes. Paradero then was
forced to grab a knife to defend herself. Clearly, petitioner provoked Paradero and not the other way around. Hence, the element of lack of sufficient
provocation on the part of the person making the defense is also wanting in the
present case.
Self-defense
is inherently a weak defense because, as experience has demonstrated, it is
easy to fabricate and difficult to prove.[35] Thus, for this defense to prosper, the accused
must prove with clear and convincing evidence the elements of self-defense. He must rely on the strength of his own
evidence and not on the weakness of that of the prosecution. Even if the evidence of the prosecution is
weak, it cannot be disbelieved if the accused admitted responsibility for the
crime charged.[36] In the case before us, petitioner failed to prove
with plausible evidence all the elements of self-defense. Hence, his plea of self-defense must fail.
Regarding
the third issue, petitioner posits that the fact that he shot Paradero only once showed that he had no intent to kill
her. There would have been intent to
kill on his part if he shot Paradero several times,
but such was not the case. Further, when
Paradero fell on the ground, he immediately left the
scene. He could have finished her off at
that moment if he really intended to kill her.[37]
An essential
element of homicide, whether in its consummated, frustrated or attempted stage,
is intent of the offender to kill the victim immediately before or
simultaneously with the infliction of injuries. Intent to kill is a specific intent which the
prosecution must prove by direct or circumstantial evidence, while general
criminal intent is presumed from the commission of a felony by dolo.[38]
Evidence
to prove intent to kill in crimes against persons may consist, inter alia, of the
means used by the malefactors; the nature, location and number of wounds
sustained by the victim; the conduct of the malefactors before, at the time of,
or immediately after the killing of the victim, the circumstances under which
the crime was committed; and the motive of the accused.[39]
In the instant
case, petitioner used a lethal weapon, i.e.,
a gun, in assaulting Paradero. He shot Paradero twice
at a distance of two meters.[40]
The bullet from the first shot hit Paradero’s left chest.
The trajectory of the bullet hit Paradero’s vital organs such as the liver and colon. The bullet from the second shot hit Paradero’s left earlobe. Moreover, Dr. Guardiario
testified that the injury on Paradero’s colon was
fatal and would have caused her death were it not for the timely medical
attention given her.[41] The seriousness of Paradero’s
injuries was also shown by the fact that she was confined and operated on twice
in different hospitals for the wound sustained in the colon. Verily, the foregoing circumstances clearly
manifest intent to kill on the part of petitioner.
Even
assuming, arguendo,
that Paradero sustained only one gunshot wound, such
does not negate intent to kill on the part of petitioner. The number of wounds inflicted is not the sole
consideration in proving intent to kill.[42] As earlier mentioned, the means used by the
malefactors and the nature and location of the wounds also manifest intent to
kill. Petitioner’s use of a gun in
shooting Paradero on the chest and the fact that the
bullet hit some of her vital organs of Paradero
clearly indicate intent to kill.
With
regard to the fourth issue, petitioner claims that his testimony was
corroborated by Artiaga, while the testimony of Paradero was uncorroborated. As such, his testimony deserves credence and
the equipoise doctrine should be applied in his favor.[43]
Credibility is weighed not by the number of
witnesses but by the quality of their testimonies.[44] Witnesses are to be weighed,
not numbered. Evidence is assessed in terms of quality and not
quantity. Therefore, it is not uncommon to reach a conclusion of guilt on
the basis of the testimony of a lone witness. For although the number of
witnesses may be considered a factor in the appreciation of evidence,
preponderance is not necessarily on the greatest number, and conviction can
still be had on the basis of the credible and positive testimony of a single
witness.[45]
We have earlier found the sole testimony of Paradero to be more credible than that of petitioner, even
if the latter’s testimony was corroborated by Artiaga
on some relevant points. Paradero’s account of the incident was clear and consistent.
On the other hand, petitioner’s
narration of the incident, though corroborated by Artiaga,
hardly inspires belief, as it does not conform to reason and human experience. Further, the RTC and CA upheld the sole
testimony of Paradero over that of petitioner. They concluded that petitioner failed to prove
his claim of self-defense despite the fact that her testimony was corroborated
by Artiaga. Basic
is the rule that factual findings of the trial court deserve great weight and
respect especially when affirmed by the appellate court.[46]
We found no compelling reason to disturb
the ruling of both courts. Given the
foregoing, Paradero’s testimony outweighs the testimonies
of petitioner and Artiaga.
Petitioner’s
reliance on the equipoise rule is misplaced. Under the equipoise rule, where the evidence
on an issue of fact is in equipoise (evenly balanced), or there is doubt on
which side the evidence preponderates, the party having the burden of proof
loses.[47]
The equipoise rule finds application if the inculpatory
facts and circumstances are capable of two or more explanations -- one of which
is consistent with the innocence of the accused and the other with his guilt --
in which case the evidence does not fulfill the test of moral certainty and is
not sufficient to support a conviction.[48]
In
the instant case, there are no inculpatory facts and
circumstances which are capable of two or more explanations because petitioner
has already admitted shooting Paradero. In other words, there is no more issue as to
the innocence or guilt of petitioner. What
is left to be resolved is whether he can be relieved of liability by virtue of the
self-defense he pleaded. We have earlier
held that petitioner failed to discharge his burden of proving with clear and
convincing evidence the presence of the elements of self-defense. Thus, the equipoise rule does not apply to this
case.
As
regards the fifth issue, petitioner avers that the award of actual damages to Paradero in the amount of P110,000.00 was
unwarranted, because her name was not indicated in the hospital and medication
receipts presented by the prosecution; that the grant of exemplary damages was
not proper because there was unlawful aggression on the part of Paradero; that the award of P9,000.00 as unearned
income was inappropriate, as there was no basis or evidence to support the
same; and that the award of attorney’s fees amounting to P50,000.00 was
improper because there was unlawful aggression on the part of Paradero.[49]
To
be entitled to an award of actual damages, there must be competent proof of the
actual amount of loss. Credence can only
be given to those that are supported by receipts.[50]
Most
of the receipts on record[51]
were issued in Paradero’s name. Although her name was
not stated in the other receipts, it appears, however, that these receipts were
issued to Paradero’s relatives and that the items
covered by the same were purchased for Paradero. Also, it is a fact that some pharmacy outlets
do not specify the name of the purchaser in the receipts they issue, but only
indicate the items sold and their corresponding amounts.
The
receipts on record show that Paradero incurred expenses
in the amount of P22,426.06. She claimed
other expenses, but they are not supported by receipts or other competent proofs.
As such, the amount of actual damages
awarded by the RTC and the Court of Appeals should be reduced from P110,000.00
to P22,426.06. However, we have
held that when actual damages proven by receipts amount to less than P25,000.00,
such as in the present case, the award of temperate damages amounting to P25,000.00
is justified in lieu of actual damages for a lesser amount.[52] This is based on a sound reasoning that it
would be anomalous and unfair that the victim who tried but succeeded in proving
actual damages of less than P25,000.00 only would be in a worse
situation than another who might have presented no receipts at all but would be
entitled to P25,000.00 temperate damages.[53]
Thus, instead of P22,426.06, the amount of P25,000.00 as
temperate damages should be awarded to Paradero.
We
agree with petitioner that Paradero is not entitled
to exemplary damages, but we differ in his reason for the disallowance thereof.
Exemplary damages may be awarded only
when one or more aggravating/qualifying circumstances are alleged in the
information and proved during the trial.[54] In the instant case, no aggravating/qualifying
circumstance was alleged in the information. Hence, the award of exemplary damages by the
RTC and the Court of Appeals is unwarranted.
The
general rule is that documentary evidence should be presented to substantiate a
claim for damages for loss of earning capacity. As an exception, damages may be awarded in the
absence of documentary evidence, provided that there is testimony that the
victim was either (1) self-employed and earning less than the minimum wage
under current labor laws, and judicial notice may be taken of the fact that in
victim’s line of work, no documentary evidence is available; or (2) employed as
a daily wage worker earning less than the minimum wage under current labor
laws.[55] In the case under consideration, no documentary
evidence was adduced to support Paradero’s claim for
loss of earning capacity. Nonetheless, Paradero testified that she derived her income from
operating a small sari-sari store,
which she also owned. She also stated
that she earned less than P50.00 a day from selling goods in her sari-sari store.[56] It is a fact and commonly recognized in our
country that owners or operators of small sari-sari
store, such as Paradero, do not issue official receipts
since the quantity of the items being sold is minimal and these are sold cheap.
Thus, Paradero
is entitled to indemnity for loss of earning capacity. As to its proper amount, we agree with the RTC
and the Court of Appeals that Paradero is entitled to
P9,000.00. Records[57]
show that Paradero underwent treatment and medication,
which incapacitated her from working in her store for a period of 6 months. Hence, the computation is P50.00
multiplied by 180 days or 6 months. Consequently,
the amount which she could have earned during the said period was P9,000.00.
Likewise,
the award of attorney’s fees in the amount of P50,000.00 is in order[58]
because the records show that Paradero incurred such
expenses in hiring a private prosecutor for the instant case.[59]
In
his last assigned error, petitioner insists that the Court of Appeals erred in
denying his motion for reconsideration without setting forth the factual and legal
bases for the denial.
Art.
VIII, Sec. 14 of the Constitution provides that “no petition for review or motion for reconsideration of a decision of
the court shall be refused due course or denied without stating the legal basis
therefor.” This requirement was fully complied
with when the Court of Appeals, in denying reconsideration of its decision,
stated in its resolution that it found no reason to change its ruling, because
petitioner had not raised anything new.[60] Thus, its resolution denying petitioner’s
motion for reconsideration states:
For consideration is
accused-appellant’s motion for reconsideration of this Court’s decision
promulgated on
WHEREFORE, there being
no cogent reason for us to depart from our questioned findings, we hereby DENY
the aforementioned motion.[61]
We
shall now determine the propriety of petitioner’s conviction for frustrated
homicide and the corresponding prison term imposed.
We have
held that the crime of frustrated homicide is committed if the following are
present: (1) the accused intended to kill his victim, as manifested by his use
of a deadly weapon in his assault; (2) the victim sustained fatal or mortal
wound/s but did not die because of timely medical assistance; and (3) none of
the qualifying circumstance for murder under Article 248 of the Revised Penal
Code is present.[62]
All of
the aforementioned are present and were duly establish in the case at bar. First,
petitioner’s use of a gun and his act of firing it twice from a distance of 2
meters towards Paradero clearly indicated his intent
to kill her. Second, vital organs of Paradero like her
liver and colon were hit by the trajectory of the bullet. Dr. Guardiario
testified that the injury on Paradero’s colon was
fatal and would have caused her death were it not for the timely medical
attention given her. And third, none of the qualifying
circumstances for murder was alleged in the information. Thus, the RTC and the Court of Appeals were
correct in convicting petitioner of frustrated homicide.
Petitioner, nonetheless, alleges that he is entitled to the
mitigating circumstance of voluntary surrender. We agree on this point with petitioner. For
voluntary surrender to be appreciated as a mitigating circumstance, the
following requisites must concur: (1) that the offender has not been actually
arrested; (2) that the offender surrendered himself to a person in authority;
and (3) that the surrender was voluntary.[63]
The foregoing requisites are present in
the case before us. Petitioner has not
been actually arrested. After the
incident, he immediately went to his brother’s house and thereupon called via telephone a policeman named SPO2 Quevedo. He told
SPO2 Quevedo that he wanted to surrender. Upon the latter’s arrival at the house of
petitioner’s brother, petitioner turned himself in and, thereafter, he was
brought to the police station.[64]
The prosecution did not rebut the
foregoing facts.
The
penalty for frustrated homicide, pursuant to Article 250 of the Revised Penal
Code, is prision mayor.
There being one mitigating circumstance and no aggravating circumstance,
pursuant to Article 64(2) of the Revised Penal Code, the minimum period of prision mayor should be imposed. Applying the Indeterminate Sentence Law, the range
of the penalty is 4 years, 2 months and 1 day to 6 years of prision correccional as minimum, to 6 years and
1 day to 8 years of prision mayor as maximum. Thus, the RTC and the
Court of Appeals erred in sentencing petitioner to a term of 6 years of prision correccional
as minimum to 10 years of prision mayor as
maximum. The proper penalty to be imposed
on petitioner is 6 years of prision correccional, as
minimum to 8 years of prision mayor, as maximum.
WHEREFORE, the Decision of the
Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, is hereby AFFIRMED with the following MODIFICATIONS: (1) petitioner Fernando Estabas Mahawan is sentenced to an
indeterminate sentence of 6 years of prision correccional, as minimum to 8 years of prision mayor, as maximum; (2) the amount of P25,000.00
as temperate damages is awarded to Diosdada Pardero in lieu of the actual damages; and (3) the award of
exemplary damages in the amount of P50,000.00 is deleted.
SO ORDERED.
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MINITA
V. CHICO-NAZARIO
Associate Justice |
WE CONCUR:
Associate Justice
Chairperson
MA.
ALICIA AUSTRIA-MARTINEZ
Associate Justice |
ANTONIO EDUARDO B.
NACHURA Associate Justice |
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RUBEN T. REYES
Associate Justice |
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I attest that the conclusions in the
above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
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CONSUELO
YNARES-SANTIAGO Associate Justice Chairperson, Third
Division |
Pursuant to Article VIII, Section 13
of the Constitution, and the Division Chairman’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
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REYNATO S. PUNO
Chief Justice |
[1] Rollo, pp. 15-39.
[2] Penned
by Associate Justice Isaias P. Dicdican
with Associate Justices Ramon M. Bato, Jr. and Apolinario D. Bruselas, Jr. concurring; rollo, pp. 41-50.
[3] Penned
by Judge Soliver C. Peras; rollo, pp.
92-118.
[4] Records,
pp. 1-2.
[5]
[6] TSN,
[7] Records,
p. 115.
[8]
[9]
[10]
[11]
[12]
[13] TSN,
[14] Exhibit
1, records, p. 221.
[15] Rollo, p. 118.
[16] Records,
pp. 375-381.
[17]
[18] CA
rollo, pp.
129-159.
[19]
[20] Rollo, pp. 21-22.
[21] People v. Arizala,
375 Phil. 666, 674-675 (1999).
[22] Palaganas v. People, G.R. No. 165483,
[23] Rollo, pp. 22-24.
[24]
[25]
[26]
[27] People v. Belaro,
367 Phil. 90, 100-101 (1999).
[28] TSN,
[29] Records,
p. 221.
[30] People v. Beltran, Jr., G.R. No. 168051,
[31]
[32] Rollo, pp. 25-31.
[33] Palaganas v. People, supra note 22.
[34] Rollo,
p. 112.
[35] People v. Noay,
357 Phil. 295, 306 (1998).
[36] Palaganas v. People, supra note 22.
[37] Rollo, pp. 31-33.
[38] Rivera v. People, G.R. No. 166326,
[39] People v. Delim,
444 Phil. 430, 450 (2003).
[40] TSN,
6 July 1999, p. 5.
[41] TSN,
9 February 2000, p. 9.
[42] Novicio v. People, G.R. No. 163331, 29 August
2008, p. 10.
[43] Rollo, pp. 33-35.
[44] Novicio v. People, supra note 42.
[45] People v. Hillado,
367 Phil. 29, 45 (1999).
[46]
[47] Vergara v. People, G.R. No. 160328, 4 February
2005, 450 SCRA 495, 506.
[48] Id.
[49] Rollo, pp. 35-37.
[50] People v. De Castro, 451 Phil. 664, 682
(2003).
[51] Records,
pp. 117-120.
[52] People v. Beltran, Jr., supra note 30; People v. Dela
Cruz, 459 Phil 130, 138-139 (2003).
[53] Id.
[54] People v. Cachapero,
G.R. No. 153008,
[55] People v. Agudez,
G.R. Nos. 138386-87,
[56] TSN,
10 March 1999, p. 5.
[57] Records,
pp. 15-116.
[58] People v. Salva,
424 Phil. 63, 80 (2002); Resayo v. People, G.R. No. 154502,
[59] TSN,
10 March 1999, pp. 6-7.
[60] Fr. Martinez v. Court of Appeals, 410
Phil. 241, 256-257 (2001); JRB Realty v.
Court of Appeals, G.R. No. 119043,
[61] Rollo, p. 62.
[62] Palaganas v. People, supra note 22.
[63]
[64] TSN,
9 October 2002, pp. 5-6.