I M A Lawyer: homicide

Ducay propounded the questions in English, translated them into Ilocano and translated into English Ramolete's answers. After Mariano Ramolete had made his declaration, Ducay held Ramolete's right thumb, "placed it in his (Ramolete's) blood" and affixed his thumbmark at the bottom of the paper containing the dying declaration as written in English by Ducay. The thumbmark is reddish-brown. Ducay is a native of Santa Maria, Ilocos Sur. He said that he wrote the ante-mortem statement in English because that is the language used in court.

The trial court, in not attaching any probative value to the "dying declaration" and to Ducay's testimony, observed that Mariano Ramolete declared that he did not know his assailant because he was shot in the back. He did not see the aggressor. Moreover, the prosecution witnesses positively identified the culprit as Quirino Ramolete.

The "dying declaration" has an ambiguous, double meaning. While the declarant said that he did not know who was his assailant, in the same breath he pointed to Quirino Ramolete as the gunwielder who, with a companion, entered his domicile. It may be implied from the "dying declaration" that Quirino Ramolete had complicity in the killing of Mariano Ramolete.

Finally, for a complete view of the case, it should be stated that, according to Quirino Ramolete's version, gunshots were also fired under the batalan or porch of Mariano Ramolete's house (6 tsn December 13, 1966).

As already stated, appellant's counsel admits that Quirino Ramolete killed Refuerzo and shot Rayray. The trial court correctly viewed, as a "sign of guilt", Ramolete's flight to Ballesteros. It observed that the two prosecution witnesses, Enriqueta Refuerzo and Calixta Rabot, were positive in their identification of Quirino Ramolete, as the malefactor who shot Refuerzo and Mariano Ramolete. It commented that the defense failed to impair their credibility in spite of rigid cross examination. On the basis of their testimony, the trial court was convinced that Quirino Ramolete killed Refuerzo and Mariano Ramolete.

Appellant's counsel, in support of his contention that Quirino Ramolete did not kill Mariano Ramolete, quotes in his brief a portion of Enriqueta Refuerzo's testimony that she did not see Quirino firing at Mariano. However, counsel omitted Enriqueta's subsequent declaration that she knew "that Quirino Ramolete fired at her brother", Severino, and at "Mariano Ramolete" (16 tsn April 3, 1963). An impartial perusal of Enriqueta's entire testimony reveals that she categorically testified that Quirino Ramolete killed Mariano Ramolete (4 and 7 tsn April 3, 1963).

Appellant's counsel impugns the trial court's finding that Calixta Rabot testified that Quirino Ramolete shot Mariano Ramolete. Counsel cites her declaration that, because a wall separated her and her husband, Mariano Ramolete, she did not see Quirino Ramolete shooting Mariano. As shown below, her declaration was quoted out of context.

Whether the killing of Refuerzo was treacherous and whether Quirino Ramolete killed Mariano Ramolete may be deduced from the pertinent portions of the testimonies of the prosecution witnesses quoted hereunder:

Testimony of Enriqueta Refuerzo

Q. You said Quirino Ramolete killed some, do you know ... who were those that were killed? — A ... Severino Refuerzo and Mariano Ramolete, sir. (4 tsn April 3, 1963).

Q. And when Quirino Ramolete fired his gun what happened next? — A ... There was someone who was killed.

Q. Who was that was killed? — A. Severino Refuerzo and Mariano Ramolete, sir.

Q. How about his two companions, Andres Acosta and Fausto Rabara, how far were you to them? — A. They were farther to me than Quirino Ramolete.

Q. And what did they do with their guns that they were holding? — A. They fired their guns, sir.

Q. Can you tell the Court the direction where they fired their guns? — A. Quirino Ramolete pointed his gun to Severino Refuerzo. I don't know to whom the others pointed their guns. (7 tsn).

Q. And when you heard a noise which seems that someone was coming up, you made a conclusion that Quirino Ramolete was going up? — A. No, sir. He talked when he came up and said, "Stand up, Alfredo, and I will shoot you." (14 tsn).

Q. When Quirino Ramolete uttered those words to Alfredo Rayray, what did Alfredo Rayray do? — A. They went out because they were afraid, sir. ... Our companions including Severino Refuerzo went out, sir. ... When Severino Refuerzo jumped from the batalan, it was at that moment when Quirino Ramolete fired at him.

Q. How far were you when Quirino Ramolete fired at Severino Refuerzo? — A. I was about one meter from them, Your Honor. I was at the doorway. (15 tsn).

Q. And neither did you see also Quirino Ramolete fire at Mariano
Ramolete? — A. No, sir. When Quirino Ramolete fired at Severino Refuerzo, Mariano Ramolete was at the batalan.

Q. So, all that you know is that Quirino Ramolete fired at your brother (Refuerzo) and to Mariano Ramolete? — A. Yes, sir. (16 tsn).

Court: — Q: Are you sure that it was Quirino Ramolete who fired at your deceased brother? — A. Yes, Your Honor, I saw him. (23 tsn).

Q. So you saw Quirino Ramolete pointing his gun? He was not particularly trying to shoot your brother because all of you were scampering, is that right? — A. I was sure, sir. When my brother jumped to go down, it was then that he, Quirino Ramolete, pointed his gun at him. (24 tsn).

Q. To where did you ran? — A. When we ran away, Severino Refuerzo jumped out of the window west of the door (8 tsn March 15, 1966).

Q. Then what happened? — A. When we had been running, scampering towards any direction, I remembered Severino Refuerzo, and when I looked, that was the time when I saw Quirino Ramolete shot him. (9 tsn).

Q. What was the position of Severino Refuerzo when he was fired at by Quirino Ramolete? — A. He was in the act of jumping over the window so he could go to the batalan because that is where the stairs were. (10 tsn).

Q. How far was Quirino Ramolete when he fired at Severino Refuerzo? — A. It was near, sir. (The witness indicating a distance of about two and a half meters).

Q. Afterwards, what did you do and what happened next? — A. When there was no more firing, I went out and I saw Severino Refuerzo and Mariano Ramolete on the batalan and Mariano Ramolete was at his head.

Q. What was their condition? — A. Severino Refuerzo was then dead and Ramolete was agonizing. (10-11 tsn).

Q. After you heard Quirino Ramolete say that he will shoot Alfredo Rayray, you ran inside the room where Nicasia Rabanal was, is it not? — A. Not immediately, sir, because I stood up near the door where he was and that was the time when he fired at Severino (Refuerzo).

Q. Everybody who was inside the house had to pass that door where Quirino Ramolete was at that time? — A. Yes, sir. (16-17 tsn).

Testimony of Calixta Rabot

Q. When did your husband, Mariano Ramolete, die? — A. He died two years ago, sir.

Q. What was the cause of his death? — A. He was shot by Quirino Ramolete, sir. (3 tsn).

Q. And about you, how far were you in relation to Quirino Ramolete? — A. I was not very far, sir. He was close to me.

Q. How close was it? Will you indicate the distance from your place? — A. A distance of about one yard, sir.

Q. What else happened when the players ran away? — A. Quirino Ramolete fired his gun, sir.

Q. What else happened? — A. He shot Severino (Refuerzo) and my husband, Mariano (Ramolete), sir. (4-5 tsn April 4, 1963).

Q. And you said that Severino Refuerzo ran and was fired at. Do you know or did you see the one who fired at him? — A. Quirino Ramolete, sir.

Q. And where was your husband at the time when Quirino Ramolete fired at Severino Refuerzo? — A. He was in the batalan, sir.

Q. But you did not actually see your husband being fired upon, is it not? — A. As soon as Severino Refuerzo fell prostrate, my husband also fell. (7-8 tsn April 4, 1963).

Q. But your husband was in your batalan and between the batalan and where you were was a wall? — A. Yes, sir. The wall is here and here is where my husband fell (the witness indicating the walling to be between her and the place where her husband fell) (10 tsn).

Q. As a matter of fact, while you were near Quirino Ramolete, you did not see him in the batalan and you only knew that he was there when your husband was moaning? — A. Yes, sir, because when Severino Refuerzo fell, my husband fell also. (10 tsn).

Q. ... You mean to say that what you had stated that only Quirino Ramolete fired at Severino Refuerzo and your husband is not true? — A. What I saw Quirino Ramolete fired at Severino Refuerzo and my husband. (Id. 13 tsn).

Q. Can you tell the Court who was the accused who shot your husband? — A. Quirino Ramolete, your Honor. (18 tsn).

Q. When you saw Quirino Ramolete shoot your husband, was your husband inside the house? — A. He was at the batalan, your Honor. (18 tsn).

Q. When you were at the doorway of the kitchen that was the time when he shot your husband? — A. Yes, sir.

Q. And you were very near the place where your husband was shot? — A. I was close to him, your Honor.

Q. How near were you from him? — A. From here to there, your Honor (the witness indicating a length of two meters).

Q. From the place where Quirino Ramolete shot your husband, how far was your husband to Quirino Ramolete at the time he was shot? — A. He was very close, your Honor. He was here while Severino Refuerzo and my husband were here dead (the witness indicating (where) she, the witness, was from the two deceased Mariano Ramolete and Severino Refuerzo).

Q. When you said Quirino Ramolete shot Severino Refuerzo and your husband, were they shot simultaneously? — A. As soon as Severino Refuerzo fell prostrate, my husband also fell, your Honor.

Q. Did Severino Refuerzo and your husband fall to the ground when they were shot? — A. They fell on the front of the batalan, your Honor.

Q. So they were both dying and killed on the batalan? — A. Yes, your Honor. (18-19 tsn).

Considering the foregoing oral evidence, appellant's claim that he did not kill Mariano Ramolete is not borne out by the record.

A close scrutiny and dispassionate appraisal of the testimonies of Calixta Rabot and Enriqueta Refuerzo confirm the trial court's finding that they witnessed the shooting of Refuerzo by Quirino Ramolete. However, there is a palpable nebulousness in their testimonies as to how Mariano Ramolete was shot by Quirino Ramolete or how Mariano received the fatal gunshot wound of entry in the abdomen whose corresponding exit wound was in the left iliac region and how the other gunshot wound in his buttocks was inflicted.

Appellant's counsel de oficio contends that the killing of Refuerzo by Quirino Ramolete was not attended with treachery because "no deceit and trickery" were employed. He argues that "while it is true that the wounds of Severino Refuerzo were at his back", there was no treachery since he "was not waylaid or trapped" pursuant to "a preconceived plot by his aggressor". Counsel says that there is no proof that there was treachery at the inception of the attack and that there is no showing that Quirino Ramolete, in shooting Refuerzo, was not exposed to any risk which would "require him to put up a defense". Hence, while admitting that Quirino Ramolete killed Refuerzo, counsel concludes that the killing was only homicide.

These contentions are untenable. The trial court found that the killings of Refuerzo and Mariano Ramolete were attended with treachery because the wounds which they sustained were on the back. The Solicitor General agrees that treachery was present because the wounds on the back indicate that the victims were shot from behind.

A conscientious review of the circumstances surrounding the killing of Refuerzo supports the finding that there was treachery. Appellant Quirino Ramolete first came to the house unarmed and ostensibly with pacific intentions. As it turned out, his purpose was to reconnoiter or to case the house and ascertain whether the intended victims were present and unarmed. That conduct of Quirino Ramolete amounted to "trickery or deceit". He dissembled and camouflaged his murderous intention by giving the inmates of the house the impression that he would not do them any harm.

Having satisfied himself that the place and time were propitious for the execution of his diabolical plan, he left the house and fetched his confederates, Acosta and Rabara. After equipping themselves with deadly weapons, they entered the house to put into effect their felonious design. They surprised the persons inside the house particularly Refuerzo. Ramolete strategically stationed himself near the door, "the only exit in the house". (8, 17 tsn March 15, 1966).

Refuerzo must have instinctively felt that he was one of the objects of Quirino Ramolete's vindictive hostility in view of the prior incident regarding Ragil, Quirino's friend. Inasmuch as Refuerzo was unarmed and utterly defenseless, he tried to escape through the window. Quirino Ramolete shot him in that situation. Refuerzo fell into the batalan with three serious gunshot wounds of entry on his back. Treachery (alevosia) was manifest in that manner of assault because it insured the killing without any risk to the assailant (Par. 16, Art. 14 of the Revised Penal Code).

An attack made on a person who was running away and who was completely defenseless was held to be treacherous (People vs. Logroño 96 Phil. 975; Cf. People vs. Sawit, 100 Phil. 507, 512). Where the attack was made with firearms and the victims were unarmed and with no means of defense or escape because they were trapped inside a house, the assault in that situation was held to be treacherous (People vs. Hairal and Tajiril, 97 Phil. 966).

As to the culpability of appellant Quirino Ramolete for the death of Mariano Ramolete, the Court is not convinced that the killing was attended with treachery. As already noted, although the prosecution had established Quirino Ramolete's responsibility for the killing of Mariano Ramolete, it failed to establish clearly the circumstances surrounding the killing. Consequently, the killing of Mariano Ramolete should be characterized as homicide aggravated by dwelling. He was killed in his own house without having given any provocations (Par. 3, Art. 14, Revised Penal Code).

But dwelling is not aggravating in the killing of Refuerzo since he was a mere visitor in Mariano Ramolete's house (Cf. People vs. Basa, 83 Phil. 622, citing 1 Viada, Codigo Penal, Cuarta Edicion, page 338 and People vs. Celespara, 82 Phil. 399).

The trial court held that there was no abuse of superiority because only Quirino Ramolete committed the three offenses. It is not necessary to pass upon that point and upon its finding that nocturnity was also aggravating. Treachery absorbs abuse of superior strength and nocturnity.

It is alleged in the information that the killings were also qualified with premeditation. While it is manifest that the assaults were not perpetrated on a momentary impulse and that there must have been some planning and deliberation, yet it cannot be held that there was premeditacion conocida. As correctly observed by the trial court, the evidence does not show (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination and (c) an appreciable interval of time between the determination and the execution of the crime that was sufficient to allow him to reflect upon the consequence of his act and to overcome the resolution of his will (vencer las determinaciones de la voluntad) if he desired to hearken to its warnings (People vs. Fuentesuela, 73 Phil. 553; U.S. vs. Gil, 13 Phil. 530, 547).

How to do justice in the case involving Rayray is rendered difficult by the contradictory and confusing evidence in the record. As already noted, Quirino Ramolete was charged with frustrated murder for having assaulted Rayray. The lower court convicted him of lesiones graves. His counsel in this appeal prays that judgment be affirmed. The Solicitor General recommends that he be convicted of attempted murder.

Rayray himself, as an ambivalent witness, was not helpful in dissipating the discrepancies in the testimonial evidence. Listed as a prosecution witness for being an offended party, he testified for the defense. Obviously, he must have been under heavy pressure to sabotage the prosecution of his assailant or assailants.

Two days after the shooting, Rayray signed a statement before Constabulary Corporal Rodolfo Purisima while confined in the hospital. It was sworn to before the justice of the peace of Vigan. Rayray said that Quirino Ramolete shot him in the arm while he (Rayray) "was at the stairs". Then, Acosta shot him in the leg. He collapsed. (Exh. D).

Rayray, testifying as a defense witness more than five years after the tragic occurrence, said on direct examination that he had an altercation with Quirino Ramolete in the house of Mariano Ramolete during the card game. He told Quirino: "I have been losing and it is only my first time to win this game, 'yot' ". Quirino went out. Rayray followed Quirino. Then, there was a gunshot and Rayray "felt a stinging pain" in his body. He was bleeding. He ran and went downstairs, where he collapsed.

On cross-examination, Rayray said that his statement before the justice of the peace (Exh. D) was fabricated by the late Mayor Jose Rapisura. He said that he was intimidated by the mayor and by Policeman Racsa. Rayray categorically testified that Quirino Ramolete shot him (36 tsn November 22, 1966). A prosecution witness testified that Rayray was shot downstairs or when he went down (17 tsn April 3, 1963; 10 tsn March 15, 1966).

Quirino Ramolete's version on the witness stand was that, after his altercation with Rayray, the latter gripped his (Rayray's) gun and rushed at him (Ramolete), saying: "Why do you have bad feelings?" Quirino shot Rayray twice in the arm. The trial court did not accord any credence to Quirino's story.

After weighing carefully the evidence, the Court concludes that the shooting of Rayray by Quirino Ramolete was attempted homicide. Appellant Ramolete intended to kill Rayray but he was not able to perform all the acts of execution necessary to consummate the killing. The wounds suffered by Rayray on his arm and leg did not affect his vital organs. They were not mortal. There was no treachery because Quirino Ramolete first warned Rayray that he would be shot. No modifying circumstances can be considered in the assault against Rayray.

WHEREFORE, as to the killing of Severino Refuerzo, the judgment of the trial court is affirmed (Arts. 64[1] and 248, Revised Penal Code), with the modification that the indemnity should be twelve thousand pesos. The penalty should be designated as reclusion perpetua. The term "life imprisonment" is not correct (People vs. Mobe, 81 Phil. 58).

For the killing of Mariano Ramolete, appellant Quirino Ramolete is guilty of homicide aggravated by dwelling (morada). He is sentenced to an indeterminate penalty ranging from twelve (12) years of prision mayor to eighteen (18) years of reclusion temporal and to pay the heirs of the victim an indemnity of twelve thousand pesos.

In the third case the lower court's judgment is also modified. Appellant Quirino Ramolete is convicted of attempted homicide as to Alfredo Rayray instead of lesiones graves. There being no modifying circumstances, he is sentenced to an indeterminate penalty ranging from six months of arresto mayor to three (3) years of prision correccional and to indemnify Rayray in the sum of one thousand four hundred pesos (P1,400) to cover his medical expenses and loss of income. Costs against the appellant.

The maximum duration of forty years fixed in article 70 of the Revised Penal Code applies to the service of the three sentences.

So ordered.

Makalintal, C.J., Zaldivar, Castro, Fernando, Barredo, Esguerra, Fernandez and Muñoz Palma, JJ., concur.

Teehankee and Antonio, JJ., concurs in the result.

Makasiar, J., took no part.

Wednesday, July 8, 2009

People vs. Oquiño, G.R. No. L-37483, June 24, 1983

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-37483 June 24, 1983

THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
ANTONIO OQUIÑO, ROMULO LAGARIO alias "Rogelio Lagario", and ARNIDO CALOSOR, accused, ROMULO LAGARIO alias "Rogelio Lagario", appellant.

The Solicitor General for plaintiff-appellee.

Jose T. Nery for appellant.

PER CURIAM:

This is an automatic review of the judgment of the Court of First Instance of Leyte in Criminal Case No. 580 finding the accused, Romulo Lagario alias "Rogelio Lagario," guilty of the crime of robbery with homicide and sentencing him as follows:

IN VIEW OF THE FOREGOING, in spite of a personal wish of the undersigned trial Judge, that he be not constrained so to do, but finding herein accused guilty beyond reasonable doubt of the special complex crime of robbery with homicide, and considering the aggravating circumstances of abuse of superior strength, recidivism and habitual delinquency, not having been offset by any mitigating circumstance, accused Romulo Lagario is hereby sentenced to suffer the supreme penalty of DEATH. The Court further orders the accused to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay the costs.

SO ORDERED.

Done this 10th day of July 1973, in the City of Tacloban, Phils.

(Sgd.) Godolfredo P. Quisumbing
District Judge

The information for robbery with homicide in the instant case was originally filed on November 11, 1971 charging three accused, namely: Antonio Oquiño Romulo Lagario alias "Rogelio Lagario" and Arnido Calosor. An amended information was later filed on October 23, 1972 likewise charging the said three accused but adding four (4) aggravating circumstances which reads as follows:

That on or about the 10th of October, 1971, in the City of Tacloban, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring and confederating together and mutually helping each other, armed with bolos (pisao) with deliberate intent and with intent to kill and with the use of violence and with intent to gain did then and there wilfully, unlawfully and feloniously take and carry away a wrist watch marked "RADO" with serial No. 11658 valued in the amount of P650.00 and by reason thereof and or on occasion thereof, attack, assault and stab one Anecito Parades with a bolo (pisao) which accused have provided for the purposes causing his instantaneous death.

Contrary to Art. 294, par. I of the Revised Penal Code, with the following aggravating circumstances:

(1) That the crime was committed in the nighttime thereby facilitating its commission and enabling the accused to commit the crime with impunity.

(2) That the accused all of whom were armed, took advantage of their superior strength;

(3) That the accused is a recidivist, having been convicted by final judgment of three (3) counts of Theft which, together with the present charge, are embraced in the same title of the Revised Penal Code;

(4) That the accused, Romulo Lagario is a habitual delinquent, having been previously found guilty by final judgment in the City Court of Tacloban, in the following cases, to wit:

Crime	Date Committed	Convicted	Date Released
Theft (R-12,997)	4-15-68	5-28-68	March 28, 1969
Theft (R-13,689)	4-19-69	7-2-69	February 2, 1971
Theft (R-13,691)	3-29-69	10-28-69	February 2, 1971

Tacloban City, October 23, 1972. ¹

Accused Antonio Oquiño died on February 5, 1972 ² while accused Arnido Calosor was never apprehended and remained at large. ³ Hence, only accused Romulo Lagario was arraigned on October 26, 1972. He pleaded not guilty to the crime charged and trial on the merits followed.

The evidence adduced by the prosecution is summarized in the People's brief as follows:

At about 7:25 o'clock in the evening of October 10, 1971, Marina Uy and her deceased sweetheart, Aniceto Parades, were strolling and conversing at the Children's Park in Tacloban City. It rained. They took shelter in one of the miniature houses and sat on one of the protruding beams of the balcony facing the door. Suddenly accused Calosor opened the door together with his co-accused, Lagario (sic) and Oquiño (pp. 2-4, tsn, Bugho, March 8, 1973). They went inside, brandished their boloes (pisaoan eight-inch knife) and threatened them. Surprised, the duo fell backward. Oquiño held Marina's right hand and dragged her away. Lagario and Calosor took Aniceto to the side of the small house and wanted to take his wrist watch (pp. 5-9, tsn, Id.). Marina was able to free herself from Oquiños hold, for her hand was wet and slippery. Oquiño joined Lagario and Calosor. He took hold of Aniceto's front T-shirt. Then, Lagario stabbed Aniceto at the solar plexus (chest) and Calosor at the back.

The stab wound inflicted by Lagario perforated the heart through and through and Calosor's perforated the right lung (Exhibit "A", p. 100 Folder of Exhibits). Marina saw the stabbing as the place was lighted with a Mercury lamp. After Lagario and Calosor stabbed Aniceto, Marina ran away to ask for help. She went to the Leyte Provincial Jail accompanied by a man. Somebody at the jail tdalked to the telephone. After about twenty (20) minutes, she returned and found Aniceto wounded. His wrist watch was no longer with him (pp. 9-13, tsn, Id.)

She saw again Oquiño and Lagario in jail. Pat, de la Peña showed to her the wrist watch taken which was recovered from a whom Lagario had asked to sell the watch (pp. 14-16, tsn., Id.). They took the bleeding Aniceto to the City Hospital where he died (p. 18, tsn, Id.). Accused Lagario had three convictions for theft in Criminal Case Nos. R-13691 dated October 20, 1969 (Exhibit "D", p. 102, Folder of Exhibits R-12997 dated May 28, 1968 (Exhibit "E", P. 103, Id.) and R-13689 dated July 2, 1969 (Exhibit "F" p. 104, Id.). Marina was emphatic in saying that she actually saw Oquiño help Lagario and Calosor in subduing Aniceto and in attempting to take the latter's wrist watch (pp. 40- 41, tsn, Id.).

Patrolman Wilfredo de la Peña of the Tacloban City Police Force investigated the stabbing incident in which the victim was Aniceto Parades. Among the three suspects, he apprehended only Lagario and Oquiño the latter, however, died before the case was terminated. The investigation was done in the presence of other police investigators and Lagario's relatives. At the instance of the two accused, Pat. de la Peña recovered the wrist watch of the deceased from one Agripino Aguilos, alias "Agri", a bus driver (p. 6, tsn, Santos, April 25, 1973). They admitted that they took the wrist watch from the victim (pp. 42-45, tsn, Bugho March 8, 1972).

The cadaver of Aniceto R. Parades was autopsied by Dr. Juanito C. de la Cruz, the assistant city fiscal health officer and medico-legal officer of Tacloban City (Exhibit "A", p. 100, Folder of Exhibits). The deceased received two (2) stab wounds: One (1) at the middle of the chest perforating the heart through and through and the other at the back perforating the right lung (Exhibit "B", "B-1", and "B-2", p. 101, Folder of Exhibits). Two (2) different sharp-pointed double-edged instruments were used in inflicting the two (2) fatal wounds (pp. 2-7, tsn, Santos, February 19, 1973). And, considering the location of the wounds, the assailant's were directly in front and directly at the back of the victim (p. 9, tsn, Id.).

The accused presented the following version of the inccident as submitted in his brief:

At the hearing of April 25, 1973, the accused Romulo Lagario, 20 years old, single, laborer and a resident of Tacloban City, testified that on October 10, 1971 at around 7:00 o'clock in the evening he was strolling with Tony Oquiño at the children's park at Tacloban City, when somebody was killed; that while they were strolling, it rained and they took shelter in a small hut at the children's park (tsn, 2-3); that there he saw a man and a woman whose names he did not know; that Oquiño talked to the man and thereafter he saw Oquiño boxed the man and stabbed him in the middle part of the abdomen (tsn, 4); that the man slumped forward and he saw Oquiño again stabbed the man on the back, that he then ran away leaving Oquiño and the man there.

He also testified that he met Oquiño at the pier of Tacloban in the morning of the next day aboard the motorboat Samareno, who requested him to sell a watch (tsn 5); that he told Oquiño he could not sell the watch himself but would look for someone to sell the watch for Oquiño that he requested Agripino Aguilos to sell the watch; that Agripino was unable to sell the watch retaining possession of it (tsn, 6); that the watch came into the custody of the Secret Service Division because when he was apprehended he told the police where the watch was and they took possession of it (tsn, 7).

He also testified that he did not know a woman named Marina Uy who testified against him although he had occasion to see the woman he mentioned in that incident of Oct. 10, 1971 in the courtroom.

On cross-examination, he admitted that he was present when Oquiño stabbed the man he referred to in his direct examination (tsn, 8), that after the stabbing he left Oquiño at the place; that he executed an affidavit in connection with the case but he is not sure if Exh. " G " is the same affidavit he executed; that he did not subscribe and swear to the affidavit Exh. "G", before Fiscal Sano (tsn, 9-10); that Antonio Oquiño gave him the wrist watch; that he did not know a person by the name of Arnido Calosor (tsn, 11-12). "The accused was the only witness who testified in his behalf in view of the fact that at the time of the trial he was an inmate in the City Jail and, therefore, unable to sure a witness or at least contact them.

The trial court as aforesaid, refused to give credence to the evidence of the defendant and convicted him of the crime of robbery with homicide. In the instant review, defendant's counsel de oficio contends that trial court committed the following errors:

The lower court erred in giving fun faith and credence to the biased, unnatural, improbable and conflicting testimony of Marina Uy.

The lower court erred in finding that the accused is guilty of robbery.

III

The lower court erred in admitting Exhibit "G" an alleged sworn statement by the accused before Fiscal Sano over the objection of the accused.

The lower court erred in not believing the testimony of Lagario and in not acquitting him of the offenses charged.

Under the first assignment of error, accused-appellant seeks to discredit the testimony of Marina Uy, first, because she is the girl friend of the deceased victim, Anecito Parades, second, because her testimony is uncorroborated, and third, because of the alleged inconsistencies that were attendant in her direct examination.

The rule is well-established that a witness' relationship to the victim does not, by itself, impair his credibility. ⁴ On the contrary, it would be unnatural for such persons interested in seeing retribution exacted for the crime to impute the same to any person other than those responsible for the crime. ⁵

While it may be true that Marina Uy is embittered by the irreparable loss of a loved one, her declaration is firm, cogent, credible and straightforward. It is far from being tainted and prejudiced.

It has also been held that even assuming that the testimony of the principal eyewitness was not properly corroborated by the other prosecution witnesses, it is still sufficient to warrant the conviction of the accused, since it is also well-settled that "the testimony of a single witness which satisfies the court in a given case, is sufficient to convict. ⁶

The accused-appellant points to the flaws or inconsistencies in Marina Uy's testimony which refer to "the weapon or criminal agency that caused Parades' death, her distance from the alleged protagonists after the lapse of 3 minutes that she ran away to call for assistance, and her exaggerated and contradictory assertion that she saw the knife penetrate the body of the deceased." ⁷

Appellant claims that it is doubtful whether the weapon used to lull Parades was a pisao or a bolo or a knife because the principal eyewitness vacillated when she testified in court. At one time, she testified that the three accused threatened her and her deceased boyfriend with their pisao ⁸ only to admit later that she did not see the bolos brandished at the time. At another time, she claimed that the weapon was "a pisao, about eight (8) inches long" ⁹ only to claim later that she did not know what kind of weapon it was. ¹⁰ Then at another time, she testified that she actually saw the knife of Calosor enter the body of Parades ¹¹ only to contradict herself again by testifying that she did not actually the knife penetrate the body. ¹²

Appellant next casts doubt on the claim of Marina Uy that she saw how Parades was stabbed because she also claimed that she ran away after she was able to free herself from the hold of Oquiño.

The above inconsistencies are too trivial and unsubstantial to merit a reversal of the decision. Owing to the fast succession of the events in addition to the fear engendered by the same an eyewitness' inability to see the minute details of every sequence, to measure by metes and bounds the distances between one point to another as well as tell the exact minutes that have elapsed, is not unusual. Besides, the seeming contradictions are explainable.

In general, the testimony of Marina Uy presents a credible set of facts. She testified that she and her boyfriend, while seated on one of the protruding beams of the balcony of a miniature house at the Children's Park, were threatened by appellant together with two other companions. She may not have seen clearly the weapons when the three opened the door as she was taken aback as in fact she fell with her boyfriend to the ground but eventually saw the weapons. ¹³ As to the kind of weapons, it should be noted that she did not make a categorical answer that "it was a pisao, about eight inches long." She preceded her statement with the "I did not actually see it at that time." ¹⁴ Then on cross-examination, she explicitly declared that she did not actually know the kind of the weapons they had. ¹⁵ Hence, there is no basis for the alleged contradictions.

With respect to the alleged inconsistency in the testimony of Marina Uy as to whether or not she saw the weapon actually penetrate the body of the victim, We find that her testimony in cross-examination is clear that she actually saw it. Whatever she may have said that she "saw it because of the action of the forward thrust" have been clarified in her later statements. Besides, whether she saw the actual penetration or the action of the forward thrust do not really matter as the latter does not mean any other thing. The stubborn fact remains that the defenseless victim was stabbed by a sharp-pointed instrument. ¹⁶

On the contention of the accused that Marina Uy could not have seen the stabbing as she also claimed that she ran away after she freed herself from the clutch of Oquiño suffice it to state that said argument departs from human nature. The knowledge that one is no longer pursued would naturally make him or her stop and look back especially when a loved one is left behind. This was what Marina did as clearly indicated in her testimony. Hence, she saw the actual assailants.

We disagree with appellant's contention that there was no unlawful taking of the wrist watch and that the prosecution failed to prove the element of intent of gain.

Proof as to motive for the crime, that is, the accused intended to rob or only to kill the victim, is important or essential when the evidence on the commission of the robbery is purely circumstantial or inclusive, ¹⁷ as in this case.

Motive may be inferred from the following circumstances: (1) that certain jewelry and money found to be missing from the house of the deceased a short time after the homicide was subsequently found at a place indicated by the accused; ¹⁸ and (2) that the money which the deceased had at the beginning of the assault had disappeared when the body was being removed, although strewn above were a handkerchief, buttons torn from his shirt, and other articles. ¹⁹

Similarly, the motive to rob was duly proven in this case by the categorical statement of Marina Uy that while appellant and Calosor were dragging Aniceto to the side of the hut, they "wanted to take his watch" ²⁰ coupled with the disappearance of the wrist watch when she returned to the wounded Aniceto after seeking help and its subsequent recovery from a certain Agripino Aguilos whose name was supplied to the police by the appellant and his co-accused, Antonio Oquiño after their arrest.

The intent to gain from the taking of the watch is clearly indicated in appellant's testimony that he was asked by Oquiño to sell the watch. ²¹

We likewise do not find merit in the contention of appellant that his sworn statement (Exhibit "G") is inadmissible for the reason that he is illiterate and there is no evidence presented that he understood the same which was in the English language. Said sworn statement was admitted because Jose Sano, the Assistant City Fiscal of Tacloban before whom the same was subscribed and sworn to, Identified in court appellant's right-hand thumbmark and declared that said thumbmark was affixed in the presence of a witness who also signed said statement. He also testified that prior to the g of the thumbmark, he explained to appellant the contents of the statement in a dialect he knew and understood.

Moreover, in his testimony, appellant admitted having executed an affidavit in connection with this case. ²² He merely denied having sworn to the truth of the statement. But never did he impugn the same from the time he executed it on October 14, 1971 up to the date he testified on April 25, 1973.

We quote hereunder pertinent portions of the sworn statement of the accused bearing on his participation in the crime charged:

Question and Answer No. 4:

Question — Why were you picked up by the police?

Answer — Because I had a participation in a robbing and stabbing incident.

Question and Answer No. 5:

Q — Who were your companions in this incident when happened?

A — My companions were Antonio Oquiño and Arnido Calosor, alias Arnel and Arnul.

Question and Answer No. 6:

Q — Where did this incident occur?

A — On or about 7:25 p.m. October 10, 1971 at Plaza Libertad, this City, inside the Children's Park. (pp. 25-26, Records)

The trial court in its decision made use of the said sworn statement to impeach the credibility of the accused in view of its inconsistency with his testimony in court on the time of the incident, the number of his companions, the person who gave him the watch as wen as on whether or not he witnessed the incident. Thus, the trial court correctly relied on the principle that "the testimony of an accused does not merit credit or inspire confidence when it is inconsistent and incompatible with his statement on other occasions." ²³

Nevertheless, even without the sworn statement, it is clear in the testimony of the accused that he was at the scene of the crime at the time it was committed, that he was in the company of Oquiño one of the perpetrators of the crime; and that the watch was recovered from the person indicated by him and Oquiño All these show his complicity in the crime. His sheer defense that he had nothing to do with it cannot be believed as against the positive and interlocking testimony of Marina Uy who identified him and Calosor as the one who stabbed her boyfriend at the solar plexus and the back, respectively, as corroborated by the testimony of the doctor who confirmed the possibility of the use of two different weapons and inevitably of two assailants, as well as by the testimony of Detective Wilfredo de la Peña who successfully retrieved the watch exactly from the person pointed to by the accused. The lower court correctly found the different testimonies of the prosecution witnesses far more credible than the sole and negative testimony of the accused. Besides, where the issue is one of credibility of witnesses, the findings of the trial court are given great weight, having heard the witnesses and observed their deportment and manner of testifying during trial.

That the crime of robbery with homicide was committed by the accused has, thus, been duly proven beyond reasonable doubt. The trial court properly took judicial notice of the documents marked as Exhibit "E", Exhibit "F" and Exhibit "D", proving the aggravating circumstance of recidivism against the herein accused. By reason of his previous three convictions by final judgment for the crime of theft, the lower court also rightly considered him as a habitual delinquent. The assault against the unarmed victim having been perpetrated by three armed men, there is no doubt that abuse of superior strength characterized the crime. We agree with the trial court that there was no evidence to show that nighttime was sought purposely or taken advantage of to facilitate the perpetration of the offense.

Finding no error in the decision of the trial court, We hereby AFFIRM the death sentence and the civil liability of P12,000.00 due to the heirs of the victim, imposed on accused Romulo Lagario owing to the presence of the aggravating circumstances of recidivism, habitual delinquency and abuse of superior strength with no mitigating circumstance to offset the same.

SO ORDERED.

Makasiar, Aquino, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.

Fernando, CJ., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

CONCEPCION, Jr. J., concurring:

RELOVA, J., concurring:

The penalty should be reclution perpetua.

Separate Opinions

TEEHANKEE, J., concurring:

CONCEPCION, Jr. J., concurring:

RELOVA, J., concurring:

The penalty should be reclution perpetua.

Footnotes

1 Rollo, pp. 13-14.

2 Record, p. 27.

3 Record, p. 94.

4 People vs. Villalba, 17 SCRA 948; People vs. Bautista, 6 SCRA 522, People va. Valera. 5 SCRA 910.

5 People vs. Bagsican, 6 SCRA 400; People va. Reyes, 17 SCRA 309; People vs. Tagaro, 7 SCRA 187.

6 People va. Sope, et al., 75 Phil. 810.

7 Appellant's Brief, p. 14.

8 TSN, p. 5.

9 TSN, p. 6, March 8, 1973.

10 TSN, p. 23.

11 TSN, p. 35.

12 TSN, p. 36.

13 TSN, p. 23.

14 TSN, p. 6.

15 TSN, p. 23.

16 TSN, p, 5.

17 People vs, Elizaga, 86 Phil. 364.

18 U.S. vs. Merin, 2 Phil. 88.

19 People vs. Dumduma & Caindoy 55 Phil. 953. ,

20 pp. 8-9, tsn, Bugho, March 8,1973.

21 pp. 5-6, tsn, April 25, 1973.

22 p. 19, tsn, April. 25, 1973.

23 People vs. Ramos, 77 Phil. 4; People vs. Bauden, 77 Phil. 105; and People vs. Paras, 80 Phil. 391.

People vs. De Fernando, G.R. No. L-24978, March 27, 1926

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24978 March 27, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.

W. A. Armstrong for appellant.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

This appeal has been taken by the defendant Fernando de Fernando from the judgment of the Court of First Instance of Zamboanga, in which he was held guilty of the crime of murder and sentenced to suffer the penalty of twenty years cadena temporal, to indemnify the heirs of the deceased Buenventura Paulino in the sum of P1,000 and to pay the costs, by virtue of a complaint filed by the fiscal charging with the said crime.

As a basis for his appeal the accused assigns the following errors as committed by the trial court: (1) in holding that the acts committed by the accused constituted the crime for murder; (2) in not holding that the accused was exempt from criminal liability and in not acquitting him.

At the trial the following facts were proven beyond a reasonable doubt: Before the day of the crime several Moro prisoners had escaped from the Penal Colony of San Ramon, Zamboanga. The residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by the presence of three suspicious looking persons who were prowling around the place. The accused Fernando de Fernando who, at that time, was a municipal policeman, when passing in front of the house of one Remigio Delgado, was called by the latter's daughter Paciencia Delgado, who stated that her father wished to see him. When the policeman came up the house Remigio Delgado informed him that three unknown and suspicious looking persons, dressed in blue, prowling around his house. The accused remained in the said house talking with Paciencia Delgado, both being seated on a bench near the window. While they were thus talking, at about 7 o'clock at night, there appeared in the dark, at about 4 meters from the stairs, a person dressed in dark clothes, calling "Nong Miong." At the time the accused nor Paciencia Delgado knew who was thus calling. The accused inquired what he wanted but instead of answering he continued advancing with bolo in hand. Upon seeing this Fernando de Fernando took out his revolver and fired a shot in the air. As he saw that the unknown continued to ascend the staircase he fired at him. The unknown disappeared and ran to the house of a neighbor Leon Torres, where, after placing upon a table the bolos that he carried, he fell on the floor and expired. Remigio Delgado, who was in the kitchen and had recognized the voice of the unknown, on hearing the shots ran into the parlor, took hold of the arm of the defendant and asked him why he had fired at Buenventura Paulino. Fernando de Fernando only said "Let me go, that is a cross eyed person" and immediately repaired to the house of the teniente of the barrio, Santiago Torres, from where he telephoned to the chief of police advising him of what had happened. When the body was examined it was found that a bullet had penetrated the base of the neck at the right, imbedding itself in the left side under the skin.

The status of the accused on the night in question was that of an agent of the law, to whom notice had been given of the presence of suspicious looking persons who might be the Moro prisoners who had escaped from the Penal Colony of San Ramon. The appearance of a man, unknown to him, dressed in clothes similar in color to the prisoner's uniform who was calling the owner of the house, and the silence of Paciencia Delgado, who did not at the time recognize the man, undoubtedly caused the accused to suspect that the unknown man was one of the three persons that the owner of the house said were prowling around the place. The suspicion become a reality in his mind when he saw that the man continued ascending the stairs with a bolo in his hand, not heeding his question as to who he was. In the midst of these circumstances and believing undoubtedly that he was a wrongdoer he tried to perform his duty and first fired into the air and then at the alleged intruder. But it happened that what to him appeared to be wrongdoer was the nephew of the owner of the house who was carrying three bolos tied together. At that psychological moment when the forces of far and the sense of duty were at odds, the accused was not able to take full account of the true situation and the bundle of bolos seemed to him to be only one bolo in the hands of a suspicious character who intended to enter the house. There is, however, a circumstance that should have made him suspect that the man was not only a friend but also a relative of the owner of the house from the fact he called "Nong Miong," which indicated that the owner of the house might be an older relative of the one calling, or an intimate friend; and in not asking Paciencia Delgado who was it was that was calling her father with such familiarity, he did not use the ordinary precaution that he should have used before taking such fatal action.

Taking into consideration the estate of mind of the accused at the time, and the meaning that he gave to the attitude of the unknown person, in shooting the latter he felt that he was performing his duty by defending the owners of the house against an unexpected attack, and such act cannot constitute the crime of murder, but only that of simple homicide. He cannot be held guilty, however, as principal with malicious intent, because he though at the time that he was justified in acting as he did, and he is guilty only because he failed to exercise the ordinary diligence which, under the circumstances, he should have by investigating whether or not the unknown man was really what he though him to be. In firing the shot, without first exercising reasonable diligence, he acted with reckless negligence.

The crime committed by the caused, therefore, is homicide through reckless negligence defined and punished in article 568, in relation with article 404, of the Penal Code, the penalty prescribed by law arresto mayor in its maximum degree to prision correcional in its minimum degree.

In view of the foregoing and reversing the appealed judgment, the accused is held guilty of the crime of homicide through reckless negligence, and he is sentenced to suffer one year prision correcional, to pay the amount of P500 to the heirs of the deceased as an indemnity, with subsidiary imprisonment in case of insolvency, the costs and with credit of one-half of the preventive imprisonment already suffered. So ordered.

Avanceña, C. J., Street, Malcom, Villamor, Ostrand, Johns and Romualdez, JJ., concur.