FIRST DIVISION
|
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus - ALBERTO TABARNERO and GARY TABARNERO, Accused-Appellants. |
|
G.R. No. 168169 Present: PUNO, C.J., Chairperson, CARPIO MORALES, LEONARDO-DE
CASTRO, BRION,* and VILLARAMA,
JR., JJ. Promulgated: February
24, 2010 |
x-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
LEONARDO-DE
CASTRO, J.:
This is an
appeal from the Decision[1] of
the Court of Appeals in CA-G.R. CR.-H.C. No. 00027 dated April 29, 2005. In said Decision, the Court of Appeals
affirmed with modification the August 29, 2002 Decision[2] of
the Regional Trial Court (RTC), Branch 78 of Malolos, Bulacan, in Crim. Case
No. 888-M-2000, convicting herein appellants Alberto Tabarnero (Alberto) and
Gary Tabarnero (Gary) of the crime of Murder.
The factual and
procedural antecedents of the case are as follows:
Late at night on
October 23, 1999, Gary went to the house of the deceased Ernesto Canatoy
(Ernesto), where the former used to reside as the live-in partner of Mary Jane
Acibar (Mary Jane), Ernesto’s stepdaughter.
Gary and Ernesto had a confrontation during which the latter was stabbed
nine times, causing his death. The
versions of the prosecution and the defense would later diverge as regards the
presence of other persons at the scene and other circumstances concerning
Ernesto’s death.
On March 3,
2000, Gary and his father, Alberto, were charged with the crime of Murder in an
Information which read:
That
on or about the 23rd day of October, 1999, in the municipality of
Malolos, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together
and mutually helping each other, armed with bladed instrument and with intent
to kill one Ernesto Canatoy, did then and there willfully, unlawfully, and
feloniously, with evident premeditation, abuse of superior strength and
treachery, attack, assault and stab with the said bladed instrument the said Ernesto
Canatoy, hitting the latter on the different parts of his body, thereby causing
him serious physical injuries which directly caused his death.[3]
On 27 March
2000, warrants for the arrest of Gary and Alberto were issued by the RTC of
Malolos, Bulacan.[4]
On April 22, 2001,
Gary surrendered to Barangay Tanod Edilberto Alarma.[5] When he was arraigned on April 30, 2001, Gary
pleaded NOT GUILTY to the crime charged. [6] During this time, Alberto remained at large.
On May 21, 2001,
a pre-trial conference was conducted.
Therein, Gary admitted having killed Ernesto, but claimed that it was an
act of self-defense. Thus, pursuant to
Section 11(e), Rule 119 of the Rules of Court, a reverse trial ensued.
Gary, a 22-year-old
construction worker at the time of his testimony in June 2001, testified that
he stayed in Ernesto’s house from 1997 to 1999, as he and Mary Jane were living
together. Mary Jane is the daughter of
Teresita Acibar, the wife[7] of
Ernesto. However, Gary left the house
shortly before the October 23, 1999 incident because of a misunderstanding with
Ernesto when the latter allegedly stopped the planned marriage of Gary and Mary
Jane, who was pregnant at that time.
On October 23,
1999, Gary was allegedly in his house in Longos, Malolos, Bulacan at around
11:40 p.m. with his friend, Richard Ulilian; his father, co-appellant Alberto;
his mother, Elvira; and his brother, Jeffrey.
Overcome with emotion over being separated from Mary Jane, Gary then
went to Ernesto’s house, but was not able to enter as no one went out of the
house to let him in. He instead shouted
his pleas from the outside, asking Ernesto what he had done wrong that caused
Ernesto to break him and Mary Jane up, and voicing out several times that he
loved Mary Jane and was ready to marry her.
When Gary was about to leave, the gate opened and Ernesto purportedly
struck him with a lead pipe. Ernesto was
aiming at Gary’s head, but the latter blocked the blow with his hands, causing
his left index finger to be broken. Gary
embraced Ernesto, but the latter strangled him.
At that point, Gary felt that there was a bladed weapon tucked at
Ernesto’s back. Losing control of
himself, Gary took the bladed weapon and stabbed Ernesto, although he cannot
recall how many times he did so.[8]
According to
Gary, Ernesto fell to the ground, and pleaded, “saklolo, tulungan niyo po
ako” three times. Gary was stunned,
and did not notice his father, co-appellant Alberto, coming. Alberto asked Gary, “anak, ano ang
nangyari?” To which Gary responded “nasaksak
ko po yata si Ka Erning,” referring to Ernesto. Gary and Alberto fled, allegedly out of fear.[9]
Gary denied that
he and Alberto conspired to kill Ernesto.
Gary claims that it was he and Ernesto who had a fight, and that he had
no choice but to stab Ernesto, who was going to kill him.[10]
Gary’s sister,
Gemarie Tabarnero, testified that she was a childhood friend of Mary Jane. Gemarie attested that Mary Jane was Gary’s
girlfriend from 1995 to 1999. Sometime
in 1999, however, Gary and Mary Jane were prevented from talking to each
other. During that time, Gary was always
sad and appeared catatonic, sometimes mentioning Mary Jane’s name and crying.[11]
On the night of
the incident on October 23, 1999, Gemarie observed that Gary was crying and
seemed perplexed. Gary told Gemarie that he was going to Ernesto’s house to
talk to Ernesto about Mary Jane. Gary allegedly
did not bring anything with him when he went to Ernesto’s house.[12]
In the meantime,
on August 5, 2001, Alberto was apprehended.[13] On August 20, 2001, he pleaded NOT GUILTY to
the charge.[14] However, while Alberto’s defense is denial and
not self-defense like Gary’s, the court decided to proceed with the reverse
trial, as it had already started that way.[15]
Next on the
witness stand was Edilberto Alarma (Alarma), who was a barangay tanod of
Longos, Malolos, Bulacan since February 2000.
Alarma testified that while he was in a meeting at around 4:00 p.m. on
April 22, 2001, Gary arrived and told him of his intention to surrender to
him. Gary told him that he was
responsible for the “incident [that] happened at Daang Riles.” Together with his fellow barangay tanod Zaldy Garcia,
Alarma brought Gary to the Malolos Police Station, where the surrender was
entered in the blotter report.[16]
Appellant
Alberto, a construction worker employed as leadman/foreman of Alicia Builders,
was 45 years old at the time of his testimony in September 2001. He testified that at the time of the incident,
he was living in Norzagaray, Bulacan. On
October 23, 1999, however, he went to visit his children, Gary and Gemarie, in
Barangay Longos, Malolos, Bulacan.
Before going to sleep at 11:00 p.m., he realized that Gary was not in
the place where he would usually sleep.
He went downstairs, thinking that Gary was just urinating. He waited for five minutes; when Gary did not
show up, he proceeded to Daang Bakal, where Gary had many friends. He walked for about 10 minutes. About 400 meters from the site of the
incident, he saw Gary and asked him what happened and why he was in a hurry, to
which Gary replied: “Wag na kayong magtanong, umalis na tayo, napatay ko po
yata si Kuya Erning.” Alberto and
Gary ran in different directions.
Alberto passed through the railways and exited in front of the capitol
compound to wait for a jeepney going to Sta. Maria, his route toward his home
in Norzagaray.[17]
Alberto claims
that he had no knowledge of the accusation that he conspired with Gary in
killing Ernesto. It was three months
after the incident that he came to know that he was being charged for a crime. At this time, he was already residing in
Hensonville Plaza, Angeles City, Pampanga, where he was assigned when his
engineer, Efren Cruz, secured a project in said place.[18]
During cross-examination,
Alberto repeated that he did not return to Gary’s house after the
incident. He said that it did not occur
to him to inform the authorities about the killing of Ernesto. Later, Alberto learned from his sibling, whom
he talked to by phone, that Gary had already surrendered. He did not consider surrendering because,
although he wanted to clear his name, nobody would work to support his family.
He said that he had no previous misunderstanding with Ernesto.[19]
Answering
questions from the court, Alberto stated that he immediately went home to
Norzagaray because he was afraid to be implicated in the stabbing of Ernesto. It did not occur to him to stay and help Gary
because he did not know where Gary proceeded after they ran away. The next time he saw Gary was three months
after the incident, when Gary went to Norzagaray.[20]
The first to
testify for the prosecution was its eyewitness, Emerito Acibar (Emerito). Emerito, the brother of Mary Jane,[21]
was inside their house in Daang Bakal, Longos, Malolos, Bulacan with his
brother and his stepfather, Ernesto, at around eleven o’clock on the night of
the incident on October 23, 1999. He
heard somebody calling for Ernesto, but ignored it. He then heard a “kalabog,” followed by
Ernesto’s plea for help. Emerito was
about to go outside, but, while he was already at the door of their one-room[22]
house, he saw Ernesto being held by a certain Toning “Kulit” and another
person, while Gary and Alberto were stabbing Ernesto with fan knives. Emerito lost count of the number of thrusts
made by Gary and Alberto, but each inflicted more than one, and the last stab
was made by Alberto. Emerito shouted for
help. The four assailants left when
somebody arrived, allowing Emerito to approach Ernesto and bring him to the
Bulacan Provincial Hospital.[23]
On
cross-examination, Emerito confirmed that Gary and Mary Jane used to reside in
Ernesto’s house. On the date of the
incident, however, Gary had already left the house, while Mary Jane had moved
to Abra with Teresita (the mother of Emerito and Mary Jane). According to
Emerito, his family did not know that Mary Jane and Gary had a relationship
because they treated Gary like a member of the family. Ernesto got mad when his
wife, Teresita, found out about Gary and Mary Jane’s relationship. On the night of the incident, at past 11:00
p.m., Emerito was fixing his things inside their house, when he heard someone
calling from outside, but was not sure if it was Gary. Emerito neither saw Ernesto leaving the room,
nor the fight between Ernesto and Gary.
All he saw was the stabbing, which happened seven to eight meters away
from the doorway where he was standing.
He was sure that there were four assailants, two of whom went to a bridge
8 to 10 meters from the incident, where they boarded a yellow XLT-type car.[24]
Senior Police
Officer 2 (SPO2) Ronnie Morales of the Malolos Philippine National Police
testified that he was on duty at the police station on the night of October 23,
1999. During that night, Emerito
reported at the police station that Ernesto had been stabbed. SPO2 Morales and Emerito proceeded to the
Bulacan Provincial Hospital, where SPO2 Morales saw Ernesto in the operating
room, very weak due to multiple injuries.
While in the presence of two doctors on duty, SPO2 Morales asked Ernesto
who stabbed him. Ernesto answered that
the assailants were the father and son, Gary and Alberto Tabarnero from Longos,
Bulacan.[25]
Cross-examined,
SPO2 Morales clarified that it was already 1:00 a.m. of the following day when
he and Emerito proceeded to the hospital.
As they went to the hospital, Emerito did not inform SPO2 Morales that
he witnessed the incident. SPO2 Morales
did not find it odd that Emerito did not tell him who the suspects were when
Emerito reported the incident, because they immediately proceeded to the
hospital, considering that the victim, Ernesto, was still alive. Ernesto was not able to affix his signature
on the Sinumpaang Salaysay[26] because
he could no longer talk after the fourth question. Answering questions from the court, SPO2
Morales further stated that he could not remember talking to Emerito on their
way to the hospital, since they were in a hurry.[27]
The government
physician at the Bulacan Provincial Hospital who prepared Ernesto’s death
certificate, Dr. Apollo Trinidad, clarified that Ernesto died on October 25,
1999. However, considering the admission
by the defense of the fact of death, the cause thereof, and the execution of
the death certificate, the prosecution no longer questioned Dr. Trinidad on
these matters.[28]
Teresita’s
testimony was likewise dispensed with, in light of the admission by the defense
that she was the common-law wife of Ernesto, and that she incurred P55,600.00
in expenses in relation to Ernesto’s death.[29]
On August 29,
2002, the RTC rendered its Decision convicting Gary and Alberto of the crime of
murder. The decretal portion of the Decision
reads:
WHEREFORE,
the foregoing considered, this Court hereby finds accused Alberto Tabarnero and
Gary Tabarnero GUILTY beyond reasonable doubt of the Crime of Murder defined
and penalized under Art. 248 of the Revised Penal Code, as amended, and sentences
them to suffer the penalty of Reclusion Perpetua and to pay private complainant
Teresita Acibar the amount of P55,600.000 (sic) as actual damages[,] P50,000.00
as indemnity for the death of Ernesto Canatoy[,] P50,000.00 as moral
damages, and the costs of suit.[30]
Gary and Alberto
appealed to this Court. After the
parties had filed their respective briefs, this Court, in People v. Mateo,[31]
modified the Rules of Court in so far as it provides for direct appeals from
the RTC to this Court in cases where the penalty imposed is death, reclusion perpetua or life
imprisonment. Pursuant thereto, this
Court referred[32] the
case to the Court of Appeals, where it was docketed as CA-G.R. CR.-H.C. No.
00027.
On April 29,
2005, the Court of Appeals affirmed the conviction with modification as regards
exemplary damages, disposing of the case in the following manner:
WHEREFORE,
the decision of the Regional Trial Court of Malolos, Bulacan, Branch 78 dated 29
August 2002 is hereby AFFIRMED with the modification that exemplary damages in
the amount of P25,000.00 is awarded because of the presence of
treachery.[33]
From the Court
of Appeals, the case was elevated to this Court anew when Gary and Alberto
filed a Notice of Appeal on May 13, 2005.[34] In its Resolution on August 1, 2005, this
Court required both parties to submit their respective supplemental briefs, if
they so desire. Both parties manifested
that they were adopting the briefs they had earlier filed with this Court.
Gary and
Alberto, in their brief filed in this Court before the referral of the case to
the Court of Appeals, assigned the following errors to the RTC:
I.
THE
COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE JUSTIFYING CIRCUMSTANCE
OF SELF-DEFENSE AND THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER
INTERPOSED BY ACCUSED-APPELLANT GARY TABARNERO
II.
THE
COURT A QUO GRAVELY ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE
CASE AT BAR
III.
ASSUMING
ARGUENDO THAT ACCUSED-APPELLANTS ARE CULPABLE, THE COURT A QUO GRAVELY
ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY[35]
The justifying circumstance of self-defense on the
part of Gary cannot be considered
The requisites for
self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of
sufficient provocation on the part of the accused; and 3) employment of
reasonable means to prevent and repel aggression.[36]
The defense invokes
the said justifying circumstance, claiming that all of the above three elements
are present in the case at bar. There
was allegedly unlawful aggression on the part of Ernesto when the latter
delivered the first blow with the lead pipe.
According to the defense, the means Gary used to defend himself was
reasonable, and the shouted professions of his feelings for Mary Jane could not
be considered provocation sufficient for Ernesto to make the unlawful
aggression.
The Court of
Appeals noted that the only evidence presented by the defense to prove the
alleged unlawful aggression was Gary’s own testimony. Citing Casitas
v. People,[37] the
Court of Appeals held that the nine stab wounds inflicted upon Ernesto indicate
Gary’s intent to kill, and not merely an intent to defend himself. The number of wounds also negates the claim
that the means used by Gary to defend himself was reasonable.
We agree with
the Court of Appeals. Unlawful
aggression is an indispensable requirement of self-defense.[38] As ruled by the Court of Appeals, the
evidence presented by Gary to prove the alleged unlawful aggression, namely,
his own testimony, is insufficient and self-serving. The alleged sudden appearance of Ernesto and
his first attack with the lead pipe the very moment Gary decided to leave seems
to this Court to be all too convenient, considering that there was no one
around to witness the start of the fight.
The RTC, which
had the opportunity to observe the demeanor of the witnesses, found Gary’s
account concerning the alleged unlawful aggression on the part of Ernesto to be
unconvincing. Factual findings of the
trial court, especially when affirmed by the Court of Appeals, as in this case,
are binding on this Court and are entitled to great respect.[39] It also bears to emphasize that by invoking
self-defense, Gary, in effect, admitted killing Ernesto, thus, shifting upon
him the burden of evidence to prove the elements of the said justifying
circumstance.[40] A plea of self-defense cannot be justifiably
appreciated where it is not only uncorroborated by independent and competent
evidence, but also extremely doubtful in itself.[41]
The defense
further argues that assuming that Gary is not qualified to avail of the
justifying circumstance of self-defense, he would nevertheless be entitled to
the mitigating circumstance of incomplete self-defense under Article 13(1) of
the Revised Penal Code, which provides:
Art. 13. Mitigating circumstances. — The following are mitigating
circumstances:
1. Those mentioned in the preceding chapter, when all the requisites
necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.
We
disagree. Unlawful aggression is a
condition sine qua non, without which
there can be no self-defense, whether complete or incomplete.[42] There is incomplete self-defense when the element
of unlawful aggression by the victim is present, and any of the other
two essential requisites for
self-defense.[43] Having failed to prove the indispensable
element of unlawful aggression, Gary is not entitled to the mitigating
circumstance, even assuming the presence of the other two elements of
self-defense.
Gary is not entitled to the mitigating circumstance
of voluntary surrender
The first
assignment of error presents another issue for the consideration of this
Court. The defense argues that Gary’s
yielding to Alarma should be credited as a mitigating circumstance of voluntary
surrender. The Solicitor General agreed
with the defense on this point. The
Court of Appeals, however, disagreed, and held that the delay of six months[44] before surrendering negates
spontaneity,[45] a
requisite for voluntary surrender to be considered mitigating.
We agree with
the Court of Appeals.
In order that
the mitigating circumstance of voluntary surrender may be credited to the
accused, the following requisites should be present: (a) the offender has not
actually been arrested; (b) the offender surrendered himself to a person in
authority; and (c) the surrender must be voluntary. A surrender, to be
voluntary, must be spontaneous, i.e.,
there must be an intent to submit oneself to authorities, either because he
acknowledges his guilt or because he wishes to save them the trouble and
expenses in capturing him.[46]
In People v. Barcimo, Jr.,[47]
the pending warrant for the arrest of the accused and the latter’s surrender
more than one year after the incident were considered by the Court as damaging
to the plea that voluntary surrender be considered a mitigating
circumstance. Thus:
The trial
court did not err in disregarding the mitigating circumstance of voluntary
surrender. To benefit an accused, the following requisites must be proven,
namely: (1) the offender has not actually been arrested; (2) the offender
surrendered himself to a person in authority; and (3) the surrender was
voluntary. A surrender to be voluntary must be spontaneous, showing the intent
of the accused to submit himself unconditionally to the authorities, either
because he acknowledges his guilt, or he wishes to save them the trouble and
expense necessarily incurred in his search and capture. Voluntary surrender
presupposes repentance. In People v.
Viernes [G.R. No. 136733-35, 13
December 20010], we held that going to the police station to clear one’s
name does not show any intent to surrender unconditionally to the authorities.
In the
case at bar, appellant surrendered to the authorities after more than one year
had lapsed since the incident and in order to disclaim responsibility for the
killing of the victim. This neither shows repentance or acknowledgment of the
crime nor intention to save the government the trouble and expense necessarily
incurred in his search and capture. Besides, at the time of his surrender,
there was a pending warrant of arrest against him. Hence, he should not be
credited with the mitigating circumstance of voluntary surrender.
The records show
that Gary surrendered on April 22, 2001.[48] The commitment order commanding that he be
detained was issued on April 24, 2001.[49] The surrender was made almost one year and six months from the
October 23, 1999 incident, and almost one year and one month from the issuance
of the warrant of arrest against him on March 27, 2000.[50] We, therefore, rule that the mitigating
circumstance of voluntary surrender cannot be credited to Gary.
Alberto is a principal by direct participation in
the killing of Ernesto
In insisting upon
Alberto’s innocence, the defense claims that there was no conspiracy between
him and his son, Gary. The defense
asserts that Alberto just happened to be near the scene of the crime as he was
looking for his son, whom he saw only after the altercation.
The basis of
Alberto’s conviction, however, is not solely conspiracy. A review of the proven facts shows that
conspiracy need not even be proven by the prosecution in this case, since
Alberto was categorically pointed by the eyewitness, Emerito, as one of the
assailants who actively and directly participated in the killing of Ernesto:
Q Those 2 persons whom you saw and who
stabbed your stepfather in the evening of October 23, 1999, if they are now in
court, will you be able to identify them?
A Yes, sir.
Q Would you please point to those 2
persons?
A (Witness pointing to the persons who,
when asked answered to the name of Alberto Tabarnero and Gary Tabarnero)
Q What was the position of Alberto
Tabarnero in that stabbing incident?
A He was the one whom I saw stabbed last
my stepfather.
x
x x x
COURT
(TO THE WITNESS):
Q How many times did you see Gary stabbed
your father?
A I cannot count how many stabs Gary
made.
PROS.
SANTIAGO:
Q Was it many times or just once?
A I cannot count but more than 1.
Q How about Alberto Tabarnero, how many
times did you see him stabbing your stepfather?
A I cannot count also but he was the last
one who stabbed my stepfather.[51]
Having actually
participated in the stabbing of Ernesto, it was adequately proven that Alberto
is a principal by direct participation.
Even more
persuasive is the statement of the victim himself, Ernesto, as testified to by
SPO2 Morales, that it was “the father and son, Gary and Alberto Tabarnero from
Longos, Bulacan” who stabbed him.[52] While Ernesto was not able to testify in
court, his statement is considered admissible under Section 37, Rule 130 of the
Rules of Court, which provides:
Sec.
37. Dying declaration. — The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his
death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.
In applying this
exception to the hearsay rule, we held as follows:
“It must be shown that a dying
declaration was made under a realization by the decedent that his demise or at
least, its imminence -- not so much the rapid eventuation of death -- is at
hand. This may be proven by the
statement of the deceased himself or it may be inferred from the nature and extent
of the decedent’s wounds, or other relevant circumstances.”[53]
In the case at
bar, Ernesto had nine stab wounds which caused his death within the next 48
hours. At the time he uttered his
statement accusing Gary and Alberto of stabbing him, his body was already very
rapidly deteriorating, as shown by his inability to speak and write towards the
end of the questioning.
We have
considered that a dying declaration is entitled to the highest credence, for no
person who knows of his impending death would make a careless or false
accusation. When a person is at the
point of death, every motive of falsehood is silenced and the mind is induced
by the most powerful consideration to speak the truth.[54] It is hard to fathom that Ernesto, very weak
as he was and with his body already manifesting an impending demise, would
summon every remaining strength he had just to lie about his true assailants,
whom he obviously would want to bring to justice.
The killing of Ernesto is qualified by treachery
Emerito had
testified that he saw Ernesto being held by two persons, while Gary and Alberto
were stabbing him with fan knives:
Q When you said “lalabas po sana,”
what do you mean by that?
A I am at the door and saw what happened.
Q What did you see?
A I saw my stepfather being held by two
persons and being stabbed.
Q Will you describe the appearance of
your stepfather and the 2 persons whom according to you were stabbing your
stepfather at that time?
A My stepfather is “lupaypay” and
he was being stabbed.
Q When you said “lupaypay,” will
you describe to this Honorable Court his position and appearance?
A When I saw my stepfather he was about
to fall on the ground.
Q Could you describe their appearance?
A They were helping each other in
stabbing my grandfather. (sic)
Q Those two persons whom you saw and who
stabbed your stepfather in the evening of October 23, 1999 if they are now in
Court, will you be able to identify them?
A Yes, sir.
Q Could you please point to those 2
persons?
A (Witness pointing to the persons who,
when asked answered to the name of Alberto Tabarnero and Gary Tabarnero)
Q What was the position of Alberto
Tabarnero in that stabbing incident?
A He was the one whom I saw stabbed last
my stepfather.
Q What about Gary, what is his position?
A He was helping in the stabbing.
x
x x x
Q What kind of weapon or instrument were
used by Gary and Alberto?
A Fan knife, sir.
Q Both of them were armed by a knife?
A Yes, sir.[55]
From said testimony,
it seems uncertain whether Emerito saw the very first stabbing being
thrust. Thus, the defense asseverates
that since Emerito failed to see how the attack commenced, the qualifying
circumstance of treachery cannot be considered, citing People v. Amamangpang,[56] People v. Icalla,[57]
and People v. Sambulan.[58] In said three cases, this Court held that
treachery cannot be appreciated as the lone eyewitness did not see the
commencement of the assault.
Treachery is
defined under Article 14(16) of the Revised Penal Code, which provides:
There is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
The Solicitor
General argues that treachery was amply demonstrated by the restraint upon
Ernesto, which effectively rendered him defenseless and unable to effectively repel,
much less evade, the assault.[59]
We agree with
the Solicitor General.
In the cases
cited by the appellants, the eyewitnesses were not able to observe any means,
method or form in the execution of the killing which rendered the victim
defenseless. In Amamangpang, the first thing the witness saw was the victim already
prostrate on the bamboo floor, blood oozing from his neck and about to be
struck by the accused. In Icalla, the witnesses merely saw the
accused fleeing from the scene of the crime with a knife in his hand. In Sambulan,
the witness saw the two accused hacking the victim with a bolo. Since, in these cases, there was no restraint
upon the victims or any other circumstance which would have rendered them
defenseless, the Court ruled that it should look into the commencement of the
attack in order to determine whether the same was done swiftly and
unexpectedly. However, the swiftness and
unexpectedness of an attack are not the only means by which the defenselessness
of the victim can be ensured.
In People v. Montejo,[60]
the prosecution witnesses testified that after challenging the victim to a
fight, the accused stabbed the victim in the chest while he was held in the
arms by the accused and a companion. Not
requiring a swift and unexpected commencement to the attack, the Court held:
Thus,
there is treachery where the victim was stabbed in a defenseless situation, as
when he was being held by the others while he was being stabbed, as the
accomplishment of the accused's purpose was ensured without risk to him from
any defense the victim may offer [People v. Condemena, G.R. No. L-22426, May
29, 1968, 23 SCRA 910; People v. Lunar, G.R. No. L-15579, May 29, 1972, 45 SCRA
119.] In the instant case, it has been established that the accused-appellant
stabbed the victim on the chest while his companions held both of the victim's
arms.
In People v. Alvarado,[61]
the accused and his companions shouted to the victim: “Lumabas ka kalbo,
kung matapang ka.” When the victim went
out of the house, the accused’s companions held the victim’s hands while the
accused stabbed him. Despite the yelling
which should have warned the victim of a possible attack, the mere fact that
the accused’s companions held the hands of the victim while the accused stabbed
him was considered by this Court to constitute alevosia.
We, therefore,
rule that the killing of Ernesto was attended by treachery. However, even assuming for the sake of
argument that treachery should not be appreciated, the qualifying circumstance
of abuse of superior strength would nevertheless qualify the killing to
murder. Despite being alleged in the
Information, this circumstance was not considered in the trial court as the
same is already absorbed in treachery.
The act of the accused in stabbing Ernesto while two persons were
holding him clearly shows the deliberate use of excessive force out of
proportion to the defense available to the person attacked. In People v. Gemoya,[62]
we held:
Abuse of superior strength is
considered whenever there is a notorious inequality of forces between the
victim and the aggressor,
assessing a superiority of strength notoriously advantageous for the aggressor
which is selected or taken advantage of in the commission of the crime (People
vs. Bongadillo, 234 SCRA 233 [1994]). When four armed assailants, two of
whom are accused-appellants in this case, gang up on one unarmed victim, it can
only be said that excessive force was purposely sought and employed. (Emphasis
ours.)
In all, there is
no doubt that the offense committed by the accused is murder.
The award of damages should be modified to include
civil indemnity ex delito
In the Decision
of the RTC convicting Gary and Alberto, it awarded the amount of P55,600.00
as actual damages, P50,000.00 as indemnity for the death of Ernesto, P50,000.00
as moral damages and an unidentified amount as costs of suit.[63] The Court of Appeals modified the RTC
Decision by awarding an additional amount of P25,000.00 as exemplary
damages on account of the presence of treachery.[64]
The Solicitor
General claims that the award of P55,600.00 in actual damages is not
proper, considering the lack of receipts supporting the same. However, we held in People v. Torio[65]
that:
Ordinarily,
receipts should support claims of actual damages, but where the defense does
not contest the claim, it should be granted.
Accordingly, there being no objection raised by the defense on Alma Paulo’s
lack of receipts to support her other claims, all the amounts testified to are accepted. (Emphasis supplied.)
In the case at
bar, Teresita Acibar’s testimony was dispensed with on account of the admission
by the defense that she incurred P55,600.00 in relation to the death of
Ernesto.[66] This admission by the defense is even more
binding to it than a failure on its part to object to the testimony. We therefore sustain the award of actual
damages by the RTC, as affirmed by the Court of Appeals.
The Solicitor
General likewise alleges that a civil indemnity ex delito in the amount of P50,000.00 should be
awarded. Article 2206[67]
of the Civil Code authorizes the award of civil indemnity for death caused by a
crime. The award of said civil indemnity
is mandatory, and is granted to the heirs of the victim without need of proof
other than the commission of the crime.[68] However, current jurisprudence have already
increased the award of civil indemnity ex
delicto to P75,000.00.[69] We, therefore, award this amount to the heirs
of Ernesto.
Finally, the Court of Appeals was
correct in awarding exemplary damages in the amount of P25,000.00. An aggravating circumstance, whether ordinary
or qualifying, should entitle the offended party to an award of exemplary
damages within the unbridled meaning of Article 2230[70]
of the Civil Code.[71]
WHEREFORE,
the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 00027 dated April
29, 2005 is hereby AFFIRMED, with
the MODIFICATION that appellants
Alberto and Gary Tabarnero are further ordered to pay the heirs of Ernesto
Canatoy the amount of P75,000.00 as civil indemnity.
SO ORDERED.
Associate Justice
WE CONCUR:
Chief Justice
Chairperson
|
CONCHITA CARPIO MORALES Associate Justice
|
ARTURO D. BRION Associate Justice
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MARTIN S. VILLARAMA, JR. Associate Justice |
|
Chief Justice
*
Associate Justice Arturo D.
Brion was designated to sit as additional member replacing Associate Justice
Lucas P. Bersamin per Raffle dated 18 January 2010.
[1] Penned by Associate Justice Andres
B. Reyes, Jr. with Associate Justices Lucas P. Bersamin (now a member of this
Court) and Celia C. Librea-Leagogo, concurring; rollo, pp. 3-27.
[2] Records, pp. 139-150.
[3] Id. at 2.
[4] Id. at 8-9.
[5] TSN, Aug. 20, 2001, p. 5.
[6] Records, pp. 18-19.
[7] Gary testified that Ernesto was
Teresita’s husband (TSN, June 4, 2001, p. 4), but Teresita’s testimony for the
prosecution would later be dispensed with on the admission by the defense that
Teresita is Ernesto’s common-law wife.
[8] TSN, June 4, 2001, pp. 2-9.
[9] Id. at 9.
[10] Id. at 9-10.
[11] TSN, July 23, 2001, pp. 4-5.
[12] Id. at 5-6.
[13] TSN, August 20, 2001, p. 2; TSN,
September 3, 2001, p. 5.
[14] TSN, August 20, 2001, p. 2.
[15] Id. at 3-4.
[16] Id. at 5-11.
[17] TSN, September 3, 2001, pp. 2-4.
[18] Id. at 4-6.
[19] Id. at 7-10.
[20] Id. at 10-11.
[21] TSN, November 5, 2001, p. 2.
[22] Id. at 2.
[23] TSN, October 8, 2001, pp. 2-7.
[24] TSN, November 5, 2001, pp. 2-9.
[25] TSN, December 3, 2001, pp. 2-6.
[26] Exhibit C; records, p. 125.
[27] Id. at 7-13.
[28] TSN, January 7, 2002, pp. 1-4.
[29] Records, p. 145.
[30] Id. at 150.
[31] G.R. Nos. 147678-87, July 7, 2004,
433 SCRA 640.
[32] Rollo, p. 2.
[33] Id. at 27.
[34] CA rollo, p. 153.
[35] Id. at 51-52.
[36] Baxinela v. People, G.R. No.
149652, March 24, 2006, 485 SCRA 331, 342.
[37] 466 Phil. 861, 870 (2004).
[38] Baxinela v. People, supra
note 36.
[39] Garcia v. Court of Appeals, 441
Phil. 323, 332 (2002).
[40] Baxinela v. People, supra
note 36.
[41] People v. De la Cruz, 353 Phil. 363, 381 (1998).
[42] Baxinela v. People, supra
note 36.
[43] Senoja
v. People, 483 Phil. 716, 724 (2004).
[44] The Court of Appeals and the
Solicitor General miscomputed the length of time before Gary surrendered
himself.
[45] CA rollo, p. 129.
[46] People v. Saul, 423 Phil.
924, 936 (2001).
[47] 467 Phil. 709, 720-721 (2004).
[48] TSN, Aug. 20, 2001, p. 5.
[49] Records, p. 13.
[50] Id. at 11.
[51] TSN, October 8, 2001, pp. 4-6.
[52] TSN, December 3, 2001, p. 5.
[53] People
v. Santos, 337 Phil. 334, 349 (1997).
[54] People
v. Lamasan, 451 Phil. 308, 321 (2003).
[55] TSN, October 8, 2001, pp. 4-6.
[56] 353 Phil. 815, 832 (1998).
[57] 406 Phil. 380, 394 (2001).
[58] 352 Phil. 336, 350 (1998).
[59] Rollo, p. 103.
[60] G.R. No. L-68857, November 21, 1988,
167 SCRA 506, 515.
[61] 341 Phil. 725, 737 (1997).
[62] 396 Phil. 213, 221-222 (2000).
[63] Records, p. 150.
[64] CA rollo, p. 147.
[65] 452 Phil. 777, 800 (2003).
[66] Records, p. 145.
[67] Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there may have
been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of
the earning capacity of the deceased, and the indemnity shall be paid to the
heirs of the latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical disability
not caused by the defendant, had no earning capacity at the time of his death;
(2) If the deceased was obliged to give support
according to the provisions of Article 291, the recipient who is not an heir
called to the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;
(3)
The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of
the deceased.
[68] People
v. Honor, G.R. No. 175945, April 7, 2009, 584 SCRA 546, 560.
[69] People v. Amodia, G.R. No.
173791, April 7, 2009, 584 SCRA 518, 545; People v. De Guzman, G.R. No.
173477, February 4, 2009, 578 SCRA 54.
[70] Art. 2230. In criminal offenses,
exemplary damages as a part of the civil liability may be imposed when the
crime was committed with one or more aggravating circumstances. Such damages
are separate and distinct from fines and shall be paid to the offended party.
[71] People v. Catubig, 416 Phil.
102, 120 (2001); see People v. Beltran, Jr., G.R. No. 168051, 27 September 2006, 503 SCRA 715, 741.