People vs. Bello, G.R. Nos. 130411-14 October 13, 1999

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 130411-14 October 13, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODRIGO BELLO, accused-appellant.

MELO, Acting C.J.:

In a highly conservative and religious society like ours, no crime is perhaps more repulsive and disgusting than incestuous rape, and much more so, rape by fathers of their minor daughters. As such, our Legislature has declared such offense undeserving of society's mercy, compassion, and leniency, providing, that the offense should rightfully carry with it the supreme penalty of death. Regrettably, the imposition of said penalty in the case at bar cannot be properly sustained due to the requirements of substantial justice and procedural rules not having been fully satisfied.1âwphi1.nêt

Accused-appellant was charged with four (4) counts of rape committed against his own legitimate daughter, Jenalyn A. Bello, committed on August 13, 14, 19, and 24, 1995. The first information alleged:

That on or about the 13th day of August, 1995, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the father of Jenalyn A. Bello, a minor, twelve (12) years of age, by means of force and intimidation, did, then and there wilfully, unlawfully and feloniously have carnal knowledge with Jenalyn A. Bello against her will, and consent, with the aggravating circumstance of relationship.

CONTRARY TO LAW.

(p. 9, Rollo.)

The three other informations were identically worded as the above information, except that they respectively charged that the rape therein committed occurred on August 14, 19, and 24, 1995.

At the arraignment on February 13, 1996, accused-appellant pleaded not guilty. Thereafter, the prosecution presented its side through the lone testimony of the victim which was summarized by the Office of the Solicitor General as follows:

THE RAPE OF AUGUST 13, 1995

Around 3 o'clock in the early morning of August 13, 1995, while Jenalyn was soundly sleeping in the bedroom of their house together with her two younger brothers, her drunken father woke her up and ordered her to go to the kitchen. She walked to the kitchen and he followed her. In the kitchen, he angrily ordered her to undress, promising to give her money. Realizing the evil intent of her father, she gently pleaded: "Do not do that". Gripped with fear, however, Jenalyn followed his command. Naked, he made her lie on a bench, laid on top of her and inserted his erect penis into her vagina. Feeling intense pain, she continued her plea: "Do not do that." But he paid no heed. She called for her mother, who was then sleeping at the sala, but to no avail. Jenalyn could not do anything but submit herself to the evil desires of the man whom she feared and from whose hands she suffered several punishments. Appellant succeeded in having carnal knowledge of his own daughter.

(pp. 2-3, Appellee's Brief.)

THE RAPE OF AUGUST 14, 1995

Around 1 o'clock in the early morning of August 14, 1995, appellant woke up Jenalyn and sternly whispered: "Do not say anything. Do not tell your mother. Anyway, you are not a virgin anymore." He, thereafter, ordered her to undress. At that time, Jenalyn's mother was at the public market selling fish to the early fish buyers.

When she was already naked, appellant placed himself on top of her and inserted his private organ into hers. Jenalyn repeatedly pleaded: "Father, do not do that!" He did not mind her. Instead, and in a jeer his father remarked: "Why are you saying that, anyway you are no longer a virgin like your elder sister" (appellant was obviously referring to his daughter Juliet Bello who was also victimized by him, but lucky to escape his clutches). After he was through with his sexual carnage, appellant just left the room.

Jenalyn cried the whole day, but her mother did not even ask what was bothering her. Sensing that her mother knew what was happening, Jenalyn lost the courage to approach and tell her about the matter.

(pp. 3-4, Appellee's Brief.)

THE RAPE OF AUGUST 19, 1995

Around 3 o'clock in the morning of August 19, 1995, appellant replayed the sexual assault upon Jenalyn at the kitchen of their abode while his wife was sleeping at the sala. After threatening her, he compelled her to lie on the floor. Appellant positioned himself and inserted his erect organ into her vagina enjoying his bestial act. Unable to bear the pain, she repeated her plea: "Father, do not do it anymore." Appellant bluntly replied: "Do not say anything." Her mother's lack of concern and her own fear for her father, muted Jenalyn from crying for help.

(p. 4, Appellee's Brief.)

THE RAPE OF AUGUST 24, 1995

Around 9 o'clock in the morning of August 24, 1995, Jenalyn was at Sankalan Elementary school to attend her first periodical examination. Realizing that she did not have enough paper for the examination, she returned home to ask money from her mother to buy paper. When she reached home, she saw her father and brother J.R. She went straight to their comfort room as she had then her menstrual period. From there, she proceeded to their bedroom to get something. Her father followed her and asked if she still had classes. She answered in the affirmative. Thereafter, he ordered her to undress. She refused, saying "Father, don't do that because I have my menstruation, besides, we are having now our periodical tests." Appellant insisted that she undress. Afraid of his usual maltreatment, Jenalyn gave in. After satisfying his lust, appellant just left his devastated daughter.

(p. 5, Appellee's Brief.)

On April 16, 1996, the scheduled date of the cross-examination of the complainant, accused-appellant, through his counsel de oficio, manifested that he wished to withdraw his earlier plea of not guilty and to substitute the same with one of guilty. Convinced that accused-appellant understood the consequences of his change of plea, the Honorable Mateo M. Leanda, presiding judge of Branch 8 of the Regional Trial Court of the 8th Judicial Region stationed in Tacloban City, allowed the same to be entered in the record of the four rape cases. The defense proceeded to cross-examine complainant and thereafter presented accused-appellant for the purpose of proving mitigating circumstances. Later, accused-appellant moved for the reinstatement of his plea of not guilty, but this was denied by the trial court in its order dated October 4, 1996.

On November 21, 1996, the trial court rendered judgment finding accused-appellant guilty of four counts of rape, and disposed as follows:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING, this Court finds accused RODRIGO BELLO, alias "Rudy", guilty beyond reasonable doubt, as principal, of the consummated four counts of RAPE, as defined and penalized under Art. 225 of the Revised Penal Code, as amended by Republic Act No. 7659, and he is hereby sentenced accordingly to suffer the supreme penalty of DEATH, for each count. In addition thereto, the accused's estate, if any, is ordered to indemnify the offended party, JENALYN A. BELLO, the sum of fifty thousand (P50,000.00) pesos, for each count of rape, as the subjects of this case, or the total amount of two hundred thousand pesos (P200,000.00). The accused's properties is also condemned to pay exemplary damages to the complainant in the sum of P20,000.00 per count, or a total of eighty thousand (P80,000.00) pesos in all.1âwphi1.nêt

With costs de oficio.

(pp. 35-36, Rollo.)

Accused-appellant assails said judgment, arguing that the trial court erred in: (a) convicting accused-appellant despite the failure of the prosecution to prove his guilt beyond reasonable doubt, and (b) in not allowing him to present additional evidence.

After a meticulous and objective evaluation of the record of this case, this Court is of the carefully considered opinion that the court a quo failed to observe the required procedure for cases where the accused pleads guilty to a capital offense.

Sec. 3, Rule 116 of the Revised Rules on Criminal Procedure is explicit that "when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf." Under this Rule, three things are enjoined upon the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires (Pamaran, Manuel, R., 1995 Rules on Criminal Procedure, Annotated, Rules 110-127, 1998 Edition, p. 307, citing People vs. Camay, 152 SCRA 401 [1987]). This procedure is mandatory and a judge who fails to observe it commits grave abuse of discretion (People vs. Dayot, 187 SCRA 637 [1990]).

In People vs. Albert (251 SCRA 293 [1995]), we pointed out that the rationale behind the aforequoted rule is that courts must prove with more care wherever the possible punishment is in its severest form — death — for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty.

A careful perusal of the record of this case reveals a measure of shortcoming on the part of the trial court to explain fully to accused-appellant the consequences of his plea of guilty, the trial court failing as it did to conduct the requisite searching inquiry so as to determine whether accused-appellant's plea possessed all the requirements of an acceptable one. The proceedings below on this point transpired as follows:

ATTY. ESBER:

For the accused. Before I proceed to cross-examine the witness, the accused intimated to me that he be allowed to change his previous plea of not guilty to "yes guilty."

COURT:

ORDER

Before the cross-examination of the complainant in her joint testimony for all the four (4) rape cases, the defense counsel moved the Court that the accused be allowed to withdraw his former plea of "Not Guilty" to the charge of "Rape" and substitute the same with that of "Yes Guilty."

There being no objection from the prosecution, let the accused be re-arraigned.

SO ORDERED.

INTERPRETER:

Accused pleading guilty, Your Honor.

ATTY. ESBER:

With the change of the plea of the accused from a former plea of "Not Guilty" to "Yes Guilty" to the four (4) counts of Rape, that a lesser penalty of reclusion perpetua instead of death be imposed.

PROS. CAÑA:

In the meanwhile, we would like to be allowed to present evidence if only to determine the degree of the culpability of the accused pursuant to the Rules of Court.

COURT:

ORDER

After the re-arraignment, the accused voluntarily pleaded guilty to the four (4) counts of Rape. However, the Court insisted that Fiscal Caña should continue presenting the evidence constituting the testimony of complainant to comply with the requirements of law on procedure to determine the gravity of the offense charged and, likewise, the defense is required to present evidence to satisfy the requirement of the law.

SO ORDERED.

(tsn, April 16, 1996, pp. 2-3.)

Evidently, there is no showing that accused-appellant was put on the stand for purposes of inquiring whether he fully comprehended the legal consequences of his plea of guilt. The original record of this case is completely bereft of any document concerning accused-appellant's supposed re-arraignment. We cannot presume that the re-arraignment of accused-appellant was regularly conducted. We cannot lean on this rebuttable presumption especially when a man's life is at stake. We cannot anchor our judgment based on mere speculations and conjectures. Rather, we must be positively convinced. Where a capital offense like incestuous rape becomes the subject of a positive plea, it becomes imperative for the trial court to administer a searching inquiry and receive evidence undisputably showing that the accused admits his guilt freely, voluntarily, and with full knowledge of the consequences and meaning of such a plea (People vs. Albert, supra). And a plea of guilty is improvidently accepted where no effort is even made to explain to the accused that a plea of guilty to an information for a capital offense may result in the imposition of the death penalty (People vs. Derilo, 271 SCRA 633 [1997]).

A "searching inquiry", under the Rules, means more than informing cursorily the accused that he faces a jail term but so also, the exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony. Not infrequently indeed, an accused pleads guilty in the hope of a lenient treatment, or upon bad advice, or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions (People vs. Dayot, supra).

Although there is no definite and concrete rule as to how a trial judge may go about the matter of a proper "searching inquiry", it would be well for the court, for instance, to require the accused to fully narrate the incident that spawned the charges against him, or by making him reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance (People vs. Estomaca, 256 SCRA 429 [1996]). In the case under review, the record does not reveal any information about the personality profile of accused-appellant which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. Questions pertaining to the age, socio-economic status, and educational background of accused-appellant which may provide contributory insights for a proper verdict in this case were not propounded by the trial court.

Further, the trial court did not bother to explain to accused-appellant the essential elements of the crime of rape pursuant to Section 11 of Republic Act No. 7659 violation of which he was charged with. The trial judge also failed to inform accused-appellant that he would be made to indemnify his victim. As a result, accused-appellant was not properly accorded his fundamental right to be informed of the precise nature of the accusation against him, which is an integral aspect of the due process clause under the Constitution (People vs. Sevilleno, G.R. No. 129058, March 29, 1999).

Likewise, there is no showing that accused-appellant was specifically warned that on his plea of guilty, he would definitely and in any event be given the death penalty under Republic Act No. 7659. He was categorically advised that his plea of guilty would not under any circumstance affect or reduce the death sentence as he may have believed or as it may have been erroneously suggested to him. Such mistaken belief on the part of accused-appellant which may have impelled him to plead guilty is demonstrated in his testimony, to wit:

PROS. CAÑA:

Q: Knowing the contents of the four Informations during the re-arraignment, you pleaded "Guilty" to each of them?

A: I was afraid because, according to them, I will be hanged and I do not want to be hanged because who will support my wife and my children. My wife has no work.

(tsn, May 9, 1996, p. 6.)

COURT:

Q: As a whole, you deny these four (4) incidents of Rape you have committed against your daughter?

A: I do not know about that.

Q: Inspite of the fact that previously you entered a plea of "guilty" to each of these four (4) counts?

A: Because I am afraid, I might be killed.

(tsn, ibid., p. 5.)

These repeated and emphatic declarations of accused-appellant should have attracted the attention of the trial court that accused-appellant did not have full knowledge of the consequences of his plea. The trial judge at this instance should have informed and forewarned accused-appellant, in ordinary language, of three things: First, that accused-appellant's plea of guilty cannot be considered mitigating as it was made after the presentation of the evidence for the prosecution, thus, foreclosing the application of Paragraph 7, Article 13 of the Revised Penal Code. Second, that the penalty of death shall be imposed when the rape is committed by a father against a minor daughter, in accordance with Section 11 of Republic Act No. 7659. Third, that inasmuch as death is a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstance that may have attended the commission of the offense, as provided by Article 63 of the Revised Penal Code. Verily, accused-appellant cannot be reasonably expected to fully understand all the implications of his plea without the necessary detailed elucidation on the part of the trial judge. Clearly, the latter failed to observe the quantum of care which the Court had prescribed for the valid admission of a plea of guilty by an accused. As a dispenser of justice, the trial judge should have endeavored to discharge his duties competently and efficiently so as not to erode public confidence in the judiciary.

Finally, a plea of guilty must be an unconditional admission of guilt. It must be of such nature as to foreclose the defendant's right to defend himself from said charge, thus leaving the court no alternative but to impose the penalty fixed by law (People vs. De Luna, 174 SCRA 204 [1989]). An accused may not foist a conditional plea of guilty on the court in the sense that he admits his guilt provided that a certain penalty will be meted unto him. Likewise, a formal plea of not guilty should properly be entered if an accused admits the truth of some or all the allegations of the information, but interposes excuses or additional facts which, if duly established would exempt or relieve him in whole or in part of criminal responsibility (People vs. Albert, supra). The ungrammatical answers of accused-appellant to equally fractured questions during his direct examination is, on this point, revealing:

ATTY. ESBER:

Q: What happened to Jenalyn, who is now being a subject matter of this case? The question now is: Is it your own will that what happened to Jenalyn is intentionally done by you?

A: No, sir.

Q: Why do you say that it was not done intentionally by you?

A: Because, that time, I was drank. I usually do not drink I am not a habitual drinker.

Q: As a follow-up question. Do you mean to convey that because you were drank at that time you do not know what you were doing?

A: No, sir.

(tsn, May 9, 1996, p. 4.)

COURT:

Q: One of the charge against you for Rape was allegedly committed, according to the Information, was on August 13, 1996, do you know that?

A: I do not know, Your Honor.

Q: So, you do not know what happened to you and your daughter on this particular date of August 13, 1995?

A: I do not know. I was not even at home on that day.

Q: Where were you then?

A: I was at my place of work.

Q: Did you, at any time, met your daughter and have a contact with her on said date the whole day?

A: No, sir, because I have an overtime with my work.

Q: Your daughter testified in court that she was raped by you on August 13, 1995, was she telling a lie?

A: Yes, she was telling a lie because she is being coached by her sister and by her aunt.

Q: Your daughter testified in court under oath that on August 13, 1995, at 10 o'clock in the evening, while she was in the bedroom, she was awakened by you and you inserted your penis in her vagina, is this true?

A: That is a lie because my wife, myself and my daughter are sleeping together.

Q: Your daughter further testified that on August 14, 1995, at 1 o'clock in the early morning, you requested her to boil water in her kitchen because you were drank, you took advantage of her, you layed her down and took advantage of her. Did you hear that statement of your daughter here in court?

A: Yes, I have heard the testimony but I did not do it.

Q: Another incident. On August 19, 1995, at 3 o'clock in the early morning, you woke her up while she was sleeping in the bedroom and then told her to go to the kitchen, and while at the kitchen you commanded her to undress, and then you even told her that before you will die you should be able to abuse herself first or have sexual intercourse with her. Did you hear that statement of your daughter here in court?

A: She is telling a lie.

Q: As a whole, you deny these four (4) incidents of Rape you have committed against your daughter?

A: I do not know about that.

Q: Inspite of the fact that previously you entered a plea of "Guilty" to each of these four (4) counts?

A: Because I am afraid, I might be killed.

(tsn, p. 5, May 9, 1996.)

It is without doubt that accused-appellant was adamant in his denial of the charges filed against him. Such being the case, the trial court should have required accused-appellant to plead anew to the charges, or at least, it should have directed that a new plea of not guilty be entered for him since said testimony had the effect of vacating his plea of guilty. Thereafter, the court a quo should have proceeded with the trial of the case to determine the guilt or innocence of accused-appellant (People vs. Balisacan, 17 SCRA 119 [1966]).

Let it be clearly understood that the administration of justice, including among other things, the punishment of guilty persons and the protection of the innocent, is the very reason for the existence of courts. While justice demands speedy administration, courts are in duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of his inevitable conviction. Any court which abets injustice or neglects to ascertain the truth with the use of all the faculties at its command abdicates its most important function and forfeits its very right to existence (Nitafan, David G., Arraignment in Serious Offenses, 251 SCRA 161 [1995]).1âwphi1.nêt

WHEREFORE, the judgment of the court a quo convicting accused-appellant Rodrigo Bello of four counts of rape is hereby vacated. The four rape cases are REMANDED to the court of origin for proper arraignment and trial of the accused, with instructions that the same be given topmost priority and the proceedings therein be conducted with deliberate dispatch and circumspection.

SO ORDERED.

Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., Bellosillo and Kapunan, JJ., are on leave on official business.

People vs. Lebumfacil, G.R. No. L-32910 March 28, 1980

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32910 March 28, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUDILLO LEBUMFACIL alias RUDY RODRIGUEZ alias ROMEO LEBUMFACIL, JR. y RODRIGUEZ, CIRILO QUIMNO alias LOLOY LAGUION and ROSENDO SALVADOR, defendants-appellants.

Pio Sepulveda and Providencio P. Abragan for appellants.

Office of the Solicitor General for appellee.

PER CURIAM:

Automatic review of the judgment of the trial court in Criminal Case No. 1551, dated August 25, 1975, finding accused Rudillo Lebumfacil, Cirilo Quimno, alias Loloy Laguion and Rosendo Salvador guilty of the murder of Pablo Chua, and imposing upon appellants Rudillo Lebumfacil and Cirilo Quimno the penalty of death, and on appellant Rosendo Salvador the penalty of reclusion perpetua, in addition to their civil liabilities in the amount of P12,000.

The facts, as found by the trial court, are as follows:

During the last week of February 1968, apellant Rosendo Salvador went to the office of the Misamis Mahogany Timber Company to see its manager, Pablo Chua, in order to collect his unpaid claim for deliveries of gravel and sand to the company. The office was located at the Garcia Building in Iligan City. After Salvador had conferred with the manager and on his way out of thebuilding, Segundo Bolocon, the security guard, inrequired from him whether he was able to collect his claim. Appellant Salvador answered in the negative, further informing Bolocon that he would return the following day. The following day, Rosendo Salvador returned to the office of the company to see Pablo Chua. He was not able, however, to see Chua as the security guard, Segundo Bolocon, informed him that he was instructed by the manager not to allow him to enter the office Salvador then protested that such action was unjustified since he was there to collect the money that was due to him. According to Bolocon, he told Salvador that he was instructed by Pablo Chua to inform him that he should submit his claim to Atty. Garcia, legal counsel of the company, Salvador, however, retorted that his business was not with Atty. Garcia but with the manager. Bolocon then replied that Salvador should, therefore, file his case in court. Salvador, however, countered that without any affidavit or document to support his claim, his action would be futile. It was at this instance when Bolocon allegedly heard Salvador utter: "These people will regret this incident. There are many ways of killing a chicken!" Later in the day, Bolocon informed Pablo Chua that Salvador was mad at him, but Chua did not say anything.

At about 2:30 o'clock in the afternoon of March 23, 1968, Rudillo Lebumfacil, Rosendo Salvador and Cirilo Quimno were seen by Rolando Mendoza conversing and drinking "tuba" in the store of a certain Roquina at Hinaplanon in Iligan City. Mendoza testified that at about 2:00 o'clock he went to the store of Ester Capangpangan to buy cigarettes. After buying cigarettes he sat on a stone between the store of Capangpangan and the store of Roquina for nearly two hours. Mendoza claimed that he overheard Rosendo Salvador telling his two co-appellants in a loud voice: "'This afternoon will be payday and Pablo Chua will pass by, you take care of him", and to this, appellant Rudillo Lebumfacil purportedly replied: "Areglado boss." After a while, Mendoza saw the car of Pablo Chua approaching, proceeding towards the compound of the Misamis Mahogany Timber Company at Pigsoutan. When the car of Pablo Chua passed in front of the store of Roquina, Cirilo Quimno went out of the store and signalled the driver at the car to stop. Pablo Chua, upon seeing Quimno, directed the driver. Bonifacio Anob, not to stop and to proceed to the company compound. The three appellants then transferred to the store of Agapito Cabisay where they resumed their drinking of "tuba". Mendoza declared that he followed appellants by walking towards the store of Dering Soledad which was about twelve (12) meters from the store of Cabisay. It was there where he (Rolando Mendoza) allegedly heard appellant Rosendo Salvador say twice or thrice in a loud voice: "When the car comes back, you take care of him." Some hours later, at about 4:00 o'clock in the afternoon, the car of Pablo Chua came out of the company compound. Cirilo Quimno shouted and signalled the driver to stop. According to Bonifacio Anob, Chua ordered him to stop the car, after which Chua alighted and walked towards Cirilo Quimno. Anob declared that at this juncture Quimno said: "Why did you suspect me of juncturing your tires and stealing some spare parts?" Pablo Chua replied: "No, I am not blaming you, you just go to the office and we will talk about it." But Quimno retorted: "Now that you are here, we will kill you." At that instance, Quimno placed his hand on his hunting knife and approached Chua. Chua stepped back, drew his .22 Caliber Magnum (Exhibit "C") and fired a warning shot into the air. When Quimno released his hold on the hunting knife, Pablo Chua approached Quimno, patted him on the shoulder, and said: "You just go to the office and we will talk about it there". After saying this, Pablo Chua returned to his car. When Chua was about to board the car, appellant Rudillo Lebumfacil suddenly approached Chua from behind and grabbed his gun. After wresting the possession of the gun, Lebumfacil aimed the revolver at Pablo Chua saying: "Now, you cannot do anything, I have your gun with me." Pablo Chua raised both his arms in surrender saying: " I have no fault, you are not my enemy, don't, don't." At that moment, Quimno shouted to Rudillo Lebumfacil "Go ahead kill him." It was at this instance when Lebumfacil allegedly turned towards Rosendo Salvador and the latter nodded his head. Lebumfacil then fired point blank at Chua, hitting the victim on the chest. Chua fell on the ground, and while he was trying to raise his head, Lebumfacil shot him again. The bullet penetrated the skull of the victim just below the right eye. Lebumfacil and Quimno fled towards the direction of Pigsoutan aboard a "Sanbar" (a small utility vehicle). Rosendo Salvador also left the scene of the crime. Bonifacio Anob drove Chua's car to Iligan City where he reported the shooting to the police authorities.

At about 8:00 o'clock in the evening of March 23, 1968, Dr. Wilfredo Jagdon, Medico-Legal Officer of the Iligan City Police Department, performed the autopsy on the deceased. According to Dr. Jagdon, he found two bullet wounds, one below the right eye and the other on the right chest, and both wounds were without exit. The cause of death was shock due to hemorrhage. The autopsy report (Exhibit "A"), issued by Dr. Jagdon is hereunder quoted as follows:

NAME — PABLO CHUA

Findings:

1. GUNSHOT WOUND OF ENTRANCE — 1 inch below the right eye, 3 mm. in diameter, with regular inverted edges, surrounded with gunpowder marks, directed antero-posteriorly and obliquely to the medial side to a distance of 4 inches without exist.

2. GUNSHOT WOUND OF ENTRANCE — 3d intercostal space, right chest, 4 inches below the mid clavicular line, directed antero-posteriorly towards the right thoracic vertebra, the bullet lodge at the right paravertebral muscle at the level of the 5th thoracic vertebra, piercing the right upper lobe of the lungs and the pulmonary vessels contributing to the intrathoracic hemorrhage.

3. Primary flacidity — present.

Cause of death — shock due to intrathoracic and intracranial hemorrhage secondary to bullet column.

He also recovered a slug from the back of the deceased at the vertebral column.

At about 2:00 o'clock in the early morning of July 3, 1968, the police authorities of Iligan City began the manhut for Lebumfacil and Quimno. A posse of constabulary soldiers and policemen proceeded to Bario Taparak, Iligan City, to look for Rudillo Lebumfacil who was reportedly hiding there with his family. After surrounding the house and after ordering Lebumfacil to surrender, the latter came out of his hideout and gave himself up. The police authorities searched his hideout and found a caliber .22 Magnum under the bed. This firearm turned out to be the licensed revolver of Pablo Chua (Exhibit "C"), which was used by appellant Rudillo Lebumfacil in shooting the victim. When Lebumfacil was questioned regarding the whereabouts of his companions, he revealed that Cirilo Quimno was hiding in Maria Cristina. Quimno was later found by the police authorities hiding inside a house in Maria Cristina. After searching the house, the police officers found a .22 Caliber "paltik" revolver (Exhibit "D") under the pillow of Quimno. The two appellants were then brought to the police headquarters at Iligan City where they were investigated. In that investigation, appellant Quimno executed a sworn statement (Exhibit "K"), stating in part, as follows:

Q. Do you have any knowledge as to the death of PABLO CHUA?

A. Same person was shot to death by RUDILLO LEBUMFACIL (Alias RUDY RODRIGUEZ) (affiant pointing to the person answering to said name) with the use of a revolver cal. 22 Magnum wrested from PABLO CHUA hitting the victim two consecutive times.

Q. Why did RUDILLO shoot PABLO CHUA? Do you know the reason why?

A. PABLO CHUA accused us of an offense which we both had not done.

Q. How did RUDILLO shoot PABLO CHUA?

A. While we were at Hinaplanon, Iligan City, we saw Mr. CHUA riding in his Mercedes Benz, so I signaled the driver to stop about 20 meters away, in order to stop and inquire from him why he accused us of slashing his tire. Upon nearing us CHUA pulled out his revolver Cal. .22 Magnum and fired at my person and then the driver made a sudden stop and backed the car towards us and then alighted from his car with same revolver pointed at me, uttering the following remarks: "AKALA KO HOLD-UP NA ITO", in return, I answered him "DILI SIR, DILI HOLD-UP KAY WALA KAMI'Y ARMAS." After that he said the following words in Tagalog,. "KAYA KITANG BAYARAN". After saying those Tagalog, I told him in Visayan: "MOPATAY KA DIAY TAO SIR, NGA DILI MAN AKO MUHILABOT NIMO". He tapped me on the right shoulder and later on I walked away about 5 meters from him. I turned back because I heard some clicking. RUDILLO and PABLO grappled with each other for the revolver Cal. .22 Magnum pointed to RUDILLO by CHUA and after a struggle, RUDILLO easily grabbed the revolver Cal. .22 Magnum and fired the same at the person of CHUA hitting him on the breast and the second time on the right eye. After the shooting we immediately fled away.

In the afternoon of July 5, 1968, Rudillo Lebumfacil was investigated by Special Counsel Hector Obach, in the presence of the City Mayor and Assistant City Fiscal Padilla. The questions of the investigator and the answers given by the appellant were taken down by a stenographer in the Mayor's office. After the statements were transcribed, Special Counsel Obach, together with City Judge Pompeyo Palarca, proceeded to the city jail where the typewritten statement was given to Lebumfacil. When he was asked to sign the statement, the latter refused and claimed that he was advised by his counsel not to sign the statement. The stenographer testified during the trial on the statements of Lebumfacil (Exhibit "E").

Both Quimno and Lebumfacil had been previously convicted by final judgment of homicide. Thus, Cirilo Quimno was previously convicted of homicide by the Court of First Instance of Lanao on August 3, 1953. After serving the sentence in the national penitentiary, he was released on parole on December 23, 1960. Lebumfacil was also previously convicted by the same court of the crime of homicide on November 18, 1957. In view of his minority, however, he was confined at Welfareville, Mandaluyong, Rizal.

Appellant Lebumfacil admitted having shot the deceased Pablo Chua with the latter's .22 Caliber Magnum revolver. He, however, insisted that he did so in self-defense. He declared that after Pablo Chua alighted from his car, he immediately shot at Cirilo Quimno, alias Loloy Laguion who was then eight (8) meters away, but failed to hit him. Cirilo Quimno then told Chua that he had no bad intentions and at the same time raised his hands. Pablo Chua then approached Cirilo and they conversed with each other. Afterwards, Chua patted the back of Cirilo, then turned his back and walked towards his car. Upon reaching his car, Pablo Chua allegedly aimed his revolver at Lebumfacil, who was then six (6) meters away, saying that Lebumfacil was one of those who destroyed his truck. When Lebumfacil denied the accusation, Chua allegedly answered: " I can afford to pay for your life which is just worth one shipment of logs." Chua then walked towards Lebumfacil, still aiming his gun at him, and said: "I can kill you and I can afford to pay you." It was at that juncture when Lebumfacil allegedly grabbed the revolver of Chua. After wresting the gun from Chua's possession, he stepped back and shouted at Chua in Tagalog: "Mr. Chua, wala ka nang magagawa", at the same time pointing the revolver at Pablo Chua. When Pablo Chua rushed towards him, that was the time he shot Chua. After Chua fall he again shot him because of his anger. He admitted that at the time he shot Chua for the second time, the latter was already lying prostrate on the ground. Appellant Quimno's testimony followed Lebumfacil's narration of the incident.

Appellant Rosendo Salvador, upon the other hand, denied any involvement in the commission of the crime. He declared that he was in good terms with the deceased; that four (4) months earlier Chua gave him a lift in his pickup car and that he went to the office of Chua to accompany one Quilino Sumli whom he recommended for employment in the Misamis Mahogany Timber Company. He admitted, however, that the previous manager of the Misamis Mahogany Timber Company failed to pay him for the sand and gravel which he had previously delivered, hence, he tried to collect the payment from Bob Neri. The latter, however, informed him that he would indorse his claim to Chua, who in turn, advised him to make his complaint in writting, which he did. On this claim, Chua told him that he would verify the record of his claim in Manila before he would make the payment. He was, therefore, advised to wait for at least two (2) months. He testified that in the afternoon of March 23, 1968, while he was on his way to the quarry, he saw his co-appellants Rudillo Lebumfacil and Cirilo Quimno in the store of Agapito Cabisay. He acceded to the invitation of Quimno to drink with them because Quimno is his brother-in-law. After drinking alcoholic drinks with them, he started to leave, for Iligan City. As he was about to leave, he saw Quimno raising his hands to stop an oncoming car. He advised Quimno not to stop the car, but Quimno replied: "Don't mind me because you do not know what it is all about. " It was then that he saw the car stop and Pablo Chua alight therefrom already holding a gun in his hand. As Chua walked towards Quimno, he shot the latter from a distance of ten (10) to twenty (20) meters. He declared that Quimno immediately raised both of his hands while he ran to the store. He heard Quimno tell Chua that his intention was not bad and that he was not armed. Afterwards, Chua approached Quimno, tapped the latter's shoulder and said: "There is no case", and Chua returned to his car. When Chua was walking towards his car, he shouted at Lebumfacil and pointed his gun at him. Lebumfacil then grabbed the gun. After grabbing the gun, he aimed it at Chua and when the latter tried to wrest the gun from his possession, Lebumfacil shot Chua on the chest. After the shooting, he (Rosendo Salvador) ran away and fled to his house.

Relying on the version given by the prosecution and rejecting the claim of self-defense of Lebumfacil, the trial court fouind appellants Rudillo Lebumfacil, Cirilo Quimno and Rosendo Salvador guilty beyond reasonable doubt of the crime of murder. Taking into consideration the circumstance of recidivism, ¹ the trial court imposed upon Lebumfacil and Quimno the penalty of death, while Rosendo Salvador was sentenced to suffer the penalty of reclusion perpetua. All accused were further ordered to indemnify the heirs of the victim Pablo Chua, jointly and severally, in the amount of 12,000.00 and each to pay one-third (1/3) of the costs.

We agree with the trial court that appellant Rudillo Lebumfacil has not convincingly proven his claim of self-defense. There could not have been any reason for Pablo Chua to accuse Lebumfacil of having slashed the tire of the truck of the Misamis Mahogany Timber Company, considering that only appellant Cirilo Quimno was suspected of this offense and Pablo Chua did not even know appellant Lebumfacil. It is clear from the evidence of the prosecution and of the defense that Pablo Chua was apparently satisfied with the explanation given by Quimno because as found by the trial court "Pablo Chua patted his shoulder and told him that there is no more case and Chat they parted in good terms with Pablo Chua walking back towards his car." Equally unpersuasive is the claim of Lebumfacil that while Pablo Chua was approaching him and while he was at a distance of less than a meter he said: "I could kill you and I can afford to pay you", and because of this Lebumfacil grabbed the revolver of Pablo Chua. First, because Chua had no reason to threaten Lebumfacil; and secondly, if Chua wanted to shoot Lebumfacil he could have easily done so before the latter could grab his revolver. It is well-settled that self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. ² The action of Lebumfacil in the shooting of the deceased is characterized by treachery. After Pablo Chua was completely disarmed he pleaded with Lebumfacil, thus! "I have no fault, you are not my enemy, don't kill me", but Cirilo Quimno shouted to appellant Lebumfacil: "Go ahead, kill him now." Although Chua's hands were still raised Lebumfacil shot him twice, the first shot hitting the victim at the region of the breast and after the victim fell on the ground and he was trying to raise his head, Lebumfacil shot him again, the bullet penetrating below the right eye of the victim. In a previous case, this Court held that where the accused fired ten shots at the unarmed victim after asking the latter to raise his hands sidewise, which the latter did, there was treachery. ³ Similarly, in People v. Barba, ⁴ where the victim had his hands upraised, pleading in a loud voice, "Do not kill me; investigate first what was my fault" and the accused fired a second shot mortally wounding the victim, this Court held that the killing was treacherous.

We are not satisfied, however, that the evidence of the prosecution has established to a degree beyond reasonable doubt the criminal involvement of appellant Rosendo Salvador. While it is possible that Salvador had harbored ill-feelings against Chua for his failure to collect the sums due to him, this alone is not sufficient to hold him liable as a co-conspirator. Conspiracy must be shown to exist as clearly and convincingly as the commission of the crime itself. ⁵

To implicate Salvador, the prosecution relied principally on the testimony of Rolando Mendoza, former employee of the deceased and at the time of his testimony, driver-operator of the Iligan Fire Department. The infirmity of Mendoza's testimony lies in its improbability. It is well-settled that where the testimony of the witness is clouded with uncertainty and improbability or unworthy of belief, the Court may disregard it. ⁶ Considering that Rolando Mendoza's alleged purpose was only to purchase cigarettes at 2:00 o'clock in the afternoon of March 23, 1968, it is quite unusual that instead of going back to his work after purchasing the cigarettes he would still waste his time by sitting on a stone for about two (2) hours or until 4:00 o'clock in the afternoon. He claims that while sitting on the stone he heard appellants who were allegedly twelve (12) meters away from him plotting the crime in question. It is not in accord with common experience and the normal conduct of man for one planning a heinous offense to reveal his criminal plans publicly. And this was precisely the story foisted by Mendoza upon the court, because he claims that Salvador, in a voice that could be heard at a distance of fifteen (15) meters, told the two other appellants: "Since this afternoon is payday, Pablo Chua will pass by, you take care of him. When Pablo Chua will pass by, you take care of him. When Pablo Chua returns, take care of him." This he allegedly did, not only once but two or three times. It must be recalled that when Salvador allegedly uttered these remarks, there were other people inside the store of Pito.

It has been said that the credit to be given the testimony of a witness may depend very much upon the accuracy of his memory, as well as upon his disinterestedness and honesty. In the case at bar, Mendoza appears deficient on this score.

Thus during the cross examination, Mendoza pleaded forgetfulness not only once or twice but several times on the fact of his previous conviction by final judgment of the crime of illegal possession of firearms.

ATTY. QUIJANO:

xxx xxx xxx

Q. Before you came to Iligan City, you have gone to Cotabato, is that correct?

A. Yes, sir.

Q. As a matter of fact, you have gone to Kidapawan, Cotabato?

A. I was there.

Q. As a matter of fact, when you were in Cotabato you were convicted of a crime?

ATTY. LOPEZ:

I object to that question, Your Honor, they cannot prove the nature of that crime.

COURT:

Witness may answer.

A. I do not know.

Q. Do you understand my question? When you were in Cotabato, you were convicted of a crime and was sentenced to serve the the penalty?

A. Yes, sir.

xxx xxx xxx

Q. Before you were accepted as fireman, you naturaly submitted an application to the mayor's office, is that correct'?

A. Yes, sir.

Q. Did you state in your application that you were convicted of a crime of illegal possession of firearm?

ATTY. LOPEZ:

Objection, Your Honor.

COURT:

Let the witness answer the question.

A. I cannot remember. ⁷ (Emphasis supplied.)

He even conveniently forgot the very simple matter of whether or not he voted in Iligan City in the elections of November 1967. It should be noted that he was testifying in 1968 and yet his memory on whether he voted or not in the 1967 elections had already abandoned him.

ATTY. SEPULVEDA.

xxx xxx xxx

Q. You testified in the preliminary investigation of this case before Judge Palarca is that correct?

A. Yes, sir.

Q. And before I go to that point, you voted in the City of Iligan?

A. I cannot remember.

Q. In 1967, there was an election in November of that year, were you in Iligan City?

ATTY. LOPEZ:

Objection, Your Honor, that is a question of incriminating the witness, Your Honor please.

COURT:

Let the witness answer the question.

A. I cannot remember. ⁸ (Emphasis supplied).

Indeed, it has been observed that no class of testimony is perhaps more unreliable and a more frequent cause of error in courts of justice than the narration of conversations real or pretended. ⁹ And here is a witness who claims to have overheard and allegedly was able to recall the conversation among the appellants in connection with their plans to commit the crime in question and yet he forgets significant events of his life. He claims to have witnessed a shocking incident wherein he saw his former employer shot in cold blood yet unexplainably forgets to inform the police authorities about it. He knew or could have known that the police were investigating the crime since his office in the Iligan Fire Department was adjacent to that of the police. The police had already begun its investigation of the crime on the very day of the occurrence, questioned witnesses on March 23, 24 and 25, 1968, amongst whom were Bonifacio Anob, Segundo Bolocon, Antonio Lomboy and appellant Rosendo Salvador. Indicative of the fact that neither the police nor the prosecution knew of the existence of this witness at that time is the fact that he was never investigated by the police, and that the list of witnesses in the information for murder against Rudillo Lebumfacil and Cirilo Ladion filed by the City Fiscal of Iligan City on March 25, 1968 (Exhibit "4") and in the Amended Information filed by the same City Fiscal on July 12, 1968, does not include the name of Mendoza as a witness of the State. As a matter of fact, it was only on August 8, 1968 or five (5) months after this incident when Rolando Mendoza appeared for the first time as a witness for the prosecution. No explanations had been given why a supposedly vital and important witness was not presented either to the police investigators when they were investigating the crime or to the court who was conducting the preliminary investigation. The long and unexplained silence of a vital witness may well give rise to suspicions as to his motive for breaking that silence. It places in doubt his credibility and creates the suspicion that he is actuated by sinister and ulterior motives. ¹⁰

The circumstance that this same witness Rolando Mendoza executed on September 20, 1969 an affidavit before Notary Public Narciso Adeva (Exhibit "8") repudiating his testimony in court further casts doubts on the integrity of this witness. In this statement he stated under oath that he falsely implicated appellant Salvador upon instruction of the lawyer of the Misamis Mahogany Timber Company because of his fear that his brother, Rogelio Mendoza, and his father, Delfin Mendoza, would be removed from their jobs with the Misamis Mahogony Timber Company. This affidavit was executed in the presence of two witnesses, Romeo Roa and Antipas Quilacio, and bears the Residence Certificate No. A-3868493, dated April 14, 1969 of Mendoza. While he repudiated this affidavit about eleven (11) days later or on October 1, 1969, when he was presented in court and testified that he signed the document "because they pushed me around in a room and they told me that if I will not sign in this document, they will have me killed", such repudiation is not impressive considering his admission that when he appeared before Notary Public Narciso Adeva to subscribed the affidavit, he did not reveal this alleged threat to his person, much less file any criminal or administrative charge against the persons purportedly involved.

The attempt of the other witness, Bonifacio Anob, to implicate Salvador is equally unavailing. It is true that this witness saw the incident in question but his testimony that Lebumfacil turned his face towards Salvador and Salvador nodded his head after which Lebumfacil shot the victim, appear to be an afterthought.

This is shown by the fact that when this witness was investigated by the police in the evening of March 24, 1968 regarding the incident in question, he never mentioned about this alleged involvement of appellant Salvador. Thus, he declared in that investigation as follows:

Q. Will you relate how the incident took place?

A. I was driving Mr. PABLO CHUA to Pigsoutan, Iligan City, and I understood he was bringing payroll money there. When we reached Hinaplanon, Iligan City, CIRILO LADION alias "LOLOY", raised a hand and shouted "PARA", MR. CHUA ordered me to drive on saying he feared that was a hold up attempt. After delivering the money at Pigsoutan we headed back city ward and when we reached Hinaplanon, CIRILO LADION again appeared by the side of the road and again shouted "PARA", I saw that he stood up beside some persons seated around a table and drinking from glasses at a small tuba store. I recognized the same persons as ROSENDO SALVADOR, RUDY LEBUMFACIL and others, and a few seconds after MR. CHUA told me to stop the car, I did, around a distance of 15 meters from where CIRILO LADION had signalled us to stop. MR. PABLO CHUA then got out of the car and he was met by CIRILO LADION. As LADION got near, I saw him point a finger at MR. CHUA and heard him say "KARON NIA KANA PATYON KA NAMO", and I observed as he talked that he was holding something at his waist which I saw was the handle of some bladed weapon he was armed with. At this outburst Mr. PABLO CHUA drew his revolver and fired to the air. CIRILO LADION seeing this took his hand away from his weapon at the waist. Then I heard LADION and MR. CHUA talking. They did so for around five minutes and as they talked MR. PABLO CHUA became amiable and observed him smiling at LADION whom he patted on the shoulder. I noticed RUDY LEBUMFACIL walked towards them from the tuba store, proceed stealthily to the back of MR. PABLO CHUA and treacherously wrest the gun being held by MR. CHUA. I saw LEBUMFACIL then point the gun at MR. CHUA who began to put his arms before him and I heard him saying "WALA AKONG KASALANAN, HINDI KITA KALABAN, HUWAG, HUWAG". Plainly I heard CIRILO LADION say to LEBUMFACIL "SIGI PATYA NA" then I heard the gun go off, saw MR. CHUA fell to the ground and as he lay there I saw LEBUMFACIL aim the gun downwards and fire another shot at MR. CHUA.

Q. What happened after that!

A. I put the car into gear and rushed away driving fast city ward and proceeded to the Police headquarters where I reported what I saw. (Exhibit "3").

It is true that, ordinarily, evidence taken on affidavit, being taken ex parte, is almost always incomplete, but the narration of the declarant in this affidavit appears sufficiently detailed to preclude the possibility that such an important matter was not included thru oversight, apart from the fact that this affidavit was executed before the Special Counsel, two days after the incident, and the declarant had, therefore, the opportunity to fully reflect on the details of the incident. Upon the other hand, Quimno admits that Bonifacio Anob is an eyewitness. Anob's testimony that when Chua raised his hands Quimno told Lebumfacil "go ahead, kill him" has not been successfully rebutted.

On the basis of the foregoing, Rudillo Lebumfacil and Cirilo Quimno should be the only ones held criminally responsible for the offense of murder. Since appellants Rudillo Lebumfacil and Cirilo Quimno had earlier been convicted of homicide by the Courts of First Instance of Cebu and Lanao del Norte, respectively, the aggravating circumstance of recidivism ¹¹ must be applied and the penalty for murder in its maximum period, which is death, should be imposed. ¹²

WHEREFORE, the Court finds Rudillo Lebumfacil and Cirilo Quimno guilty beyond reasonable doubt of the crime of murder and AFFIRMS the sentence of death imposed upon them by the trial court, in addition to their civil liabilities in the sum of P12,000.00. Appellant Rosendo Salvador is hereby ACQUITTED on the ground of reasonable doubt.

SO ORDERED.

Teehankee, Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

Footnotes

1 Article 248, in conjunction with Article 64, paragraph 3, Revised Penal Code.

2 People v. Jorge, No. 47919, April 8, 1941, 71 Phil. 451.

3 People v. Lasafin, L-5874, Feb. 11, 1953, 92 Phil. 668, 670.

4 No. L-7136, November 30, 1955.

5 People v. Custodia, L-30463, Oct. 30, 1972, 47 SCRA 289; People v. Llamera, L-21604-5-6, May 25, 1973, 51 SCRA 48; and People v. Geronimo, L-35700, Oct. 15, 1973, 53 SCRA 246.

6 98 C.J.S. 340-341.

7 T.S.N., Hearings, on Nov. 18, 19, 20, 1968, pp. 52-54.

8 Ibid, pp. 79-80.

9 11 Moore on Facts, 1005.

10 U. S. v. Cardona, No. 11686, Mar. 15, 1917, 36 Phil. 438.

11 Article 9, Revised Penal Code.

12 Art. 64, par. 3, in relation to Art. 248, Revised Penal Cod

People vs. Mercado, G.R. No. L-33492, March 30, 1988

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-33492 March 30, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
EFREN MERCADO, defendant-appellant.

PADILLA, J.:

This is an appeal from the decision * rendered by the defunct Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, dated 11 March 1971, in Criminal Case No. CCC-564-Rizal, entitled: "People of the Philippines, plaintiff, versus Efren Mercado, accused," the dispositive part of which reads as follows:

WHEREFORE, finding the accused, Efren Mercado, GUILTY, beyond reasonable doubt, of the crime of Murder as defined under Article 248 of the Revised Penal Code, as charged in the information, the Court hereby sentences him to suffer the penalty of RECLUSION PERPETUA; to indemnify the heirs of the deceased Dominador Salvador, Jr., the amount of P12,000.00; to pay the amount of P5,000.00 as moral damages and another P5,000.00 as exemplary damages; and to pay the costs.

The facts of the case, as summarized in the People's Brief, are as follows:

At about 10:00 o'clock in the evening of December 23, 1970, the deceased Dominador Salvador, Jr. and his friends were in their house preparing to caroling. Among those with the deceased were Ding Cristobal, Rod Cristobal, Teody Pangilinan, Emilio Fuerte and Leonardo Calvento. (t.s.n., pp. 2-3, January 14, 1971) From the house of Dominador Salvador they proceeded to the house of Mr. Aguilar a place which is more or less 16 to 25 meters from the place of the deceased Dominador Salvador, Jr. (t.s.n., p. 3, January 15, 1971), In going to the place of Mr. Aguilar they were to pass through an "eskinita" a small road (t.s.n., p. 3, January 15, 1971). Mr. Aguilar lives in Real street, a national road.

When they went to the place of Mr. Aguilar, Dominador Salvador, Jr. and Leonardo Calvento went ahead of the group. The group walked in a regular manner, not too slow but not too fast. On their way to Mr. Aguilar's place they heard slanderous words directed at them and when they looked around to ascertain who uttered the slanderous words, stones were suddenly hurled against them. Those who hurled the stones belonged to the group of the accused Efren Mercado (t.s.n., p. 4, January 15, 1971). Emilio Fuerte who was one of those who went caroling was hit by a stone about one (1) inch in a diameter (t.s.n., p. 5, January 15, 1971) and because he was not hurt very much and, finding that the guitar which they brought along with them had a broken string, the group returned to the place of Dominador Salvador, Jr. to repair the guitar (t.s.n., p. 6, January 15, 1971). It took the deceased and his group ten (10) minutes to repair the guitar after which they proceeded to go caroling again.

Upon reaching a comer, they saw the group of the accused Efren Mercado waiting for them (t.s.n., p. 6, January 15, 1971). The group of the accused again stoned the group of the deceased and because of this, deceased (and Leonardo Calvento) approached the group of the accused to inquire from them why they were stoned (t.s.n., p. 6-7, January 15, 1971).

Deceased and Leonardo Calvento were followed by Emilio Fuerte. While Emilio Fuerte was in front of the store he saw Efren Mercado grab the deceased and gave him a thrust with his right hand. At first Leonardo Calvento who was with the deceased thought that the deceased was not stabbed but when they were leaving the place of the incident the victim stated the following words, "May tama ako," and later he saw blood on the right chest of the victim. The victim was brought to the San Juan De Dios Hospital where he died on arrival. A necropsy report was made on the victim by Dr. Roberto Garcia and the following wounds were found:

POST-MORTEM FINDINGS

Pallor, integument conjunctivae and nailbeds, stab wound, chest, right, anterior aspect, infraclavicular region, at the level of the 1st intercostal space, right, 6.5 cms. from the anterior mediam line, 1.7 cm. in size, oriented downward and laterally, edges, clean-cut, upper extremity sharp, lower extremity, contused, directed downwards, backwards, and medially, involving among other things, the soft tissues, thru the lst intercostal space, right grazing the lower order of the 1st rib, into the right thoracic cavity, perforating the upper lobe right lung, into the middle mediastinum penetrating the superior vena cava with approximate depth, 12.0 cms.

Hemothorax, right -1,920 cc.

Brain and other visceral organs, pale.

Stomach - 1/2 filled with partly digested rice and food materials

CAUSE OF DEATH — Stab wound of the chest, right. ¹

The accused-appellant admits having stabbed the deceased, but claims self- defense. His account of the incident is as follows:

... It appears that in the evening of December 23, 1970, accused Efren Mercado had to go to the house of his employer, Larry Salvador, at Real Street, Las Pinas Rizal. He had two companions at the time, who were left outside when he went into the house of his employer. When he came out, his two companions complained to him that they were "napagiinitan" by a group of persons, who were later Identified to be Dominador Salvador and his "barkada." This group of Dominador Salvador threw firecrackers at the two companions of the accused. To avoid any incident, the accused told his companions to go home, and he himself went home. On the way home, he saw some persons, numbering twelve in all, chasing two other persons. He Identified the pursued persons as his two companions so he intervened and tried to stop the pursuers. The pursuers turned on the accused, attacking him with piece of chain and a piece of bamboo. To defend himself, the accused whipped out a knife and brandished it before his attackers, to frighten them. He had no intention to injure anyone, only to stop his attackers and to defend himself. After the attackers ran away, the accused proceeded home. Later, in the evening, he was brought to the police department and subsequently charged for the death of one Dominador Salvador. ²

The trial court, after analyzing the evidence, rejected the defense of the accused, because of the positive and unqualified Identification by prosecution witnesses Leonardo Calvento and Emilio Fuerte that the accused-appellant was the unlawful aggressor and slayer of the victim; and, besides, according to the trial court, the act of the appellant of running away from the scene of the crime, after the commission thereof, is "repugnant" to the appellant's claim of innocence "for if it is really true that he was forced to slay the victim to save his life, then he could have surrendered to the police authorities right after the commission of the crime or given himself to any member of the barrio council, where he is residing as is ordinarily done in urban areas." ³

We agree with the trial court that the accused-appellant has not convincingly proven his claim of self-defense. His defense is based solely upon his testimony, whereas, the version of the prosecution is supported by the testimonies of Leonardo Calvento and Emilio Fuerte both of whom were with the deceased on the night in question and witnessed the commission of the offense. It is well-settled that self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that precludes any vestige of criminal aggression on the part of the person invoking it, ⁴ and the Court has ruled that the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but, in itself, is extremely doubtful, ⁵ and cannot overcome the version of the prosecution supported by the testimony of two eye-witnesses who saw the incident. ⁶

The accused-appellant, in this appeal, assails the trial court for giving more weight to the testimony of the prosecution witnesses despite certain errors, inconsistencies and contradictions in their declarations.

We have examined the record of the case with great care and find no reason to set aside the findings of fact of the trial court, which are supported by documentary evidence and the testimony of witnesses who have no reason whatsoever to testify falsely against the accused-appellant. Moreover, the rule is well-settled that, where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, unless it has plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case. Herein appellant failed to demonstrate that his case falls under such exception which would justify this Court to overturn the findings of fact of the trial court.

The accused-appellant further assails the trial court for denying his motion to dismiss dated 28 January 1971. The appellant contends that the prosecution failed to prove a prima facie case against him so that the trial court should have granted his e motion to dismiss.

The contention is not well-taken. Judicial action on a motion to dismiss or demurrer to the evidence is left to the exercise of sound judicial discretion. Unless there is a grave abuse thereof, amounting to lack of jurisdiction, the trial court's denial of a motion to dismiss may not be disturbed. In the instant case, the trial court, after hearing the evidence presented by the prosecution, was convinced that said evidence was sufficient to warrant a finding of guilty vis-a-vis the accused. As a matter of fact, the Court is convinced that the accused-appellant is criminally liable for the death of Dominador Salvador, Jr. even without the admission of the accused-appellant.

The crime committed, however, as pointed out by counsel for the accused- appellant and confirmed by the Solicitor General, is Homicide and not Murder. We cite with approval the following disquisition of the Solicitor General:

We agree that the defendant should have been convicted of Homicide instead of Murder. The circumstance alleged in the information to qualify the crime of murder is treachery. There is treachery or "alevosia" if the "offender commits any of the crimes against 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."

A perusal of the evidence adduced by the prosecution reveals that the stabbing incident was preceded by the "uttering of slanderous remarks and followed by stoning." (t.s.n., pp. 4-5, January 14, 1971 and t.s.n., pp. 4, 5, 6, January 15, 1971). Because of the stoning, the deceased approached the group of the accused and (t.s.n., p. 6, January 14, 1971) it was at that time when the deceased was inquiring from the group of the accused the reason why they were stoned that he (deceased) was stabbed.

The utterance of slanderous remarks followed by the stoning incident is a warning to the deceased and Ms group of the hostile attitude of the group of the appellant and these should have placed the deceased and his companions on their guard. (People vs. Gonzales, 76 Phil. 2173; People vs. Luna, 76 Phil. 107; People vs. Sagayno, 95 SCRA 366).

Further, the prosecution evidence also discloses that the place of the wound indicated that the accused was facing the deceased. (p. 8, t.s.n., January 12, 1971)

All these circumstances negative "alevosia".

We also find merit in the submission of the accused-appellant that the trial court erred in finding that he (accused) had fled from the scene of the crime. Pat. Artemio Talampas of the Las Pinas police declared that he arrested the accused in the latter's house, which is located about 40 meters away from the scene of the stabbing incident; that the accused was at the time talking with his friends; and that when he confronted the accused with the knife, the accused readily admitted ownership, thereof, as well as his having stabbed Dominador. ⁷ These circumstances negate flight.

As recommended by the Solicitor General, the penalty to be imposed upon the accused-appellant shall be eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. However, the indemnity to be paid to the heirs of the victim shall be increased to P30,000.00, in line with recent decisions.

WHEREFORE, with the modifications above indicated, the judgment appealed from is hereby AFFIRMED. With costs against the defendant-appellant.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

* Penned by Judge Onofre A. Villaluz.

1 Appellee's Brief, pp. 2-5.

2 Appellant's Brief, pp. 2-3.

3 Trial Court decision, p. 16, Rollo, p. 24.

4 People vs. Lebumfacil, G.R. No. L-32910, March 28, 1980, 96 SCRA 573.

5 People vs. Maranan, G.R. Nos. L-47228-32, L-46587, Dec. 15, 1986, 146 SCRA 243.

6 People vs. Empeno, G.R. No. L-27610, May 28, 1970, 33 SCRA 40.

7 T.S.N. of Jan. 12, 1971, pp. 17-18,

People vs. Rey, G.R. No. 80089, April 13, 1989

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80089 April 13, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SATURNINO REY, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Julius L. Abela for defendant-appellant.

PADILLA, J.:

Saturnino Rey was charged with the crime of Murder before the Regional Trial Court of Capiz, committed as follows:

That on or about 8:40 o'clock in the evening of May 28, 1983, at Poblacion, Pilar, Capiz, Philippines, within the jurisdiction of this Court, the above-named accused armed with a .45 caliber pistol, did then and there, wilfully, unlawfully and feloniously shoot one NICOLAS PAGAYUNAN in a sudden and in unexpected manner, thereby inflicting upon the latter a gunshot wound above the nipple and sternum, right, thru and thru which caused his death thereafter; ¹

After trial, Judge Rodrigo V. Cosico found the following facts to have been established:

... On the evening of May 28, 1983, which was a fiesta day, while Rosette Pagayunan, a teacher at the San Esteban Elementary School, was preparing to cook food at her house, she found out that there was no water. Accordingly, Mrs. Pagayunan instructed her two (2) children, Babette and Nicolas, to get water from the faucet of the accused Saturnino Rey, also a public school teacher. At that time, Mr. Rey's faucet was allegedly the only one with water at the neighborhood because of the long drought. Nicolas was then a nineteen-year old fourth year high school student at the Colegio de la Purisima Concepcion, Roxas City. Babette and Nicolas proceeded towards the house of Mr. Rey to get water. Babette and Nicolas found Roban Rey, son of the accused, near the faucet. Roban was sitting atop the steps of the kitchen stairway talking with Nicolas. While Nicolas was standing beside the faucet waiting for his pail to be filled with water, he was shot twice by Saturnino Rey from the window of his bedroom which was about four (4) meters away. The shooting was witnessed by Roban Rey and Babette Pagayunan, who was about three (3) meters away from the faucet. After he was hit, Nicolas said to Roban: "I was hit." Soon after, Nicolas fell in front of Roban Roban went up their house and told Saturnino Rey: "Daddy you hit Colas." Babette went home and reported the shooting incident to her mother who fainted. The Pagayunan sisters and their group went to the place to get the body of Nicolas, who was taken to the Medicare Hospital in Pilar, Capiz, where he was given a first-aid treatment. Thereafter, Nicolas was taken to Roxas City but died before reaching the hospital.

On the morning of May 29, 1983, Patrolmen Jose Ballera and Hanzel Villareal conducted an investigation at the place of the shooting incident and found an empty shell (Exh. C) below the window of the room of Saturnino Rey. During the investigation, Roban Rey, in the presence of the police investigators and Romeo Bacalocos, pointed to the direction of the window of the room of his father, Saturnino Rey, as the place where the firing came from. ²

The trial court found the defendant-appellant guilty, as charged, and sentenced him to suffer the penalty of reclusion perpetua to indemnify the heirs of the victim in the amount of P30,000.00, to pay the heirs of the victim the amount of P50,000.00 for moral damages and to pay the costs.

From this judgment, the accused Saturnino Rey appealed. His counsel assails the trial court for completely believing the testimony of the prosecution witnesses. Counsel points to certain facts and circumstances of weight and substance which the trial court allegedly overlooked, misapplied or misinterpreted, and which, if considered, will materially alter the result, to wit: "1) the fact that it was summer and the water system connections, particularly those in the higher level of the town, were not functioning; 2) the fact that the water faucet at the backyard of the accused-appellant was not functioning, not merely because the water pressure was too weak for the faucet to function but also because the water connection had been disconnected (t.s.n., p. 283); 3) the fact that the houses of both the deceased and the accused-appellant and their immediate neighborhood are on the same higher level of the town; 4) the fact that the household of the accused-appellant were getting their water supply from Martin Cunada, their nearest neighbor, because he had a water pump, several water storage tanks, and a well; 5) the fact that the immediate neighbors of the Pagayunans had wells, water storage tanks, as well as water system connections and some of their neighbors were relatives and close friends of the Pagayunans; 6) the fact that the Pagayunans were known and seen to obtain their water supply from these immediate neighbors; 7) the fact that the Pagayunans (who were relatively new in the neighborhood) had never drawn water from the faucet of the accused-appellant; 8) the fact that the house of the accused-appellant was at least 120 meters away from the house of the deceased; 9) the fact that the only access to the accused-appellant's bedroom window from the outside was through the shuttered gate of the wire-enclosed vegetable garden; 10) the fact that the six-foot-high chicken and barb-wire fence of the vegetable garden was covered with climbing plants, thereby blocking the view from the windows as well as from the outside into the bedroom; 11) the fact that the accused- appellant's house was of the bungalow type and the sill of the bedroom window was only about 3.5 feet from the ground; 12) the fact that the deceased was found just below or near the bedroom window and within the enclosed vegetable garden, not only by members of the accused-appellant's family but also by Martin Cunada, a friend and barkada of the deceased, who happened to be passing by just after gunfire sounded; 13) the fact that Martin Cunada, who stayed for some five minutes at the scene of the incident right after the shooting, did not see Babette Pagayunan or any other member of the deceased's family anywhere in the vicinity; 14) the fact that after the shooting only Babette Pagayunan of the Pagayunan household was seen with the deceased and the Rey children at the Medicare Hospital and in Roxas City; 15) the fact that none of the four water containers the deceased allegedly brought with him to the accused-appellant's backyard faucet was ever found or seen before, during, or after the shooting; 16) the fact that except for Dr. Buenvenida, all the other four (4) witnesses of the prosecution concocted some material portions of their testimonies; 17) the fact that in a small rural town in the interior the inhabitants sup and sleep early; and 18) the fact that it was the night of the town fiesta and older folks tend to be more security-conscious." ³

The appeal is without merit. The circumstances enumerated by the counsel for the appellant are of little importance because the accused-appellant, Saturnino Rey, had admitted having fired the shot that killed the deceased Nicolas Pagayunan. His testimony in court reads, as follows:

Q Now, will you please inform the Honorable Court at about 8:40 in the night of May 28, 1983 where you were and what you were doing.

A I was inside my room of my house.

Q And what were you doing.

A I was lying down.

Q Did you have any companion in your room that night and at that time?

A Yes, sir.

Q Inform the court who were your companions.

A My child aging four years of age with my second wife.

Q What happened while you were in your room that night and that time with your child?

A There was a person who opened my window, the window of my room where I was lying down.

Q Now do you know who was that person who opened the window of your room where you were, lying down?

A No, sir. At first I did not know.

Q Will you please describe to the Honorable Court the room where you were staying in and the window which was opened?

A The frontage of my house is facing (witness pointing to the western direction). The elevation of the flooring is one foot. The height of the window from the floor is this high (witness referring to the window of the courtroom estimated to be 2 1/2 feet).

Q After you noticed that a person opened your window, the window of your bedroom, what happened?

A I felt for my pistol.

Q What happened after that?

A I sat on the bed and asked, Who are you?'

Q And did you receive an answer after asking who was that person?

A No, sir.

Q What happened after you received no answer?

A I fired a shot.

Q How many times did you fire your pistol?

A Twice.

Q By the way, how wide was that window in your room?

A About 1 1/2 meters wide.

Q And did you see anybody to whom or at whom you fired your pistol?

A The first shot that I fired was upward, on the air.

Q My question to you is, did you see any person outside the window?

A Yes, sir.

Q Were you able to discern the facial features of the person you saw at the window?

ATTY. PATRICIO:

Objection, your Honor.

COURT:

All right, reform.

ATTY. ABELA:

Q How well did you see the person you saw at your window?

A Silhouette.

Q Will you be able to recognize the person you saw at your window that night?

A No, sir.

Q And what was the person you saw at your window doing when you fired the shot?

A You mean the first shot?

Q The first shot what was the person doing.?

A After he pushed the shutter of the window he put his hand down.

Q And at that time you fired the second shot what was the man doing.?

A I was looking at him and he had the action of drawing something and that was the time I fired the second shot.

Q By the way how close was the man to your window that night?

A Just like this, from myself up to Atty. Abela (distance estimated to be 1 1/2 meters).

Q My question to you is, how close was that man to the window of your room?

A He was right at the window.

Q And what part of the body of that man can be seen by you?

A From the waist.

Q And how far were you seated on your bed, how far was your bed from the wall of the window?

A About one foot.

Q What happened after you fired the second shot directed at that man at your window?

A I gave out an alarm to my children. ⁴

Having invoked self-defense, it was incumbent upon the defendant-appellant to prove by clear and convincing evidence the fact that he acted in self-defense. The defendant must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if it were weak, it could not be disbelieved after the accused himself admitted the killing. ⁵ In this regard, defendant-appellant failed to discharge the burden reposed upon him by law to prove self-defense. The trial court found that the testimony of the defendant-appellant gave evasive and ambiguous answers before the court. ⁶ We have examined the record of the case and we find no cogent reason to disturb said findings of the trial court. The witnesses for the prosecution had no evil motive to testify falsely against the appellant.

Besides, defendant-appellant's testimony, even if true, does not establish a case of self-defense. There is no evidence of unlawful aggression on the part of the deceased. The defendant-appellant merely testified that he saw a person open the window of his bedroom and when he inquired who the person was and received no answer, he fired a shot into the air then, when said person lifted his right arm chest high, ⁷ he fired the second shot. The interval between the two shots was only about three (3) to five (5) seconds. ⁸ For unlawful aggression to be appreciated in self-defense, there must be an actual sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude. ⁹ The raising of the right arm chest high alone by an unarmed person cannot be considered unlawful aggression. Absent unlawful aggression on the part of the deceased, there cannot be self-defense on the part of the accused.

The defendant-appellant also failed to rebut the presumption that the shooting was done with criminal intention. His conduct after the shooting incident was inconsistent with the conduct of a person who had innocently shot a person by accident. It would appear that he did not do anything to help his victim who was lying down on the ground, bleeding and moaning. He did not go down from his house even after finding that the person he had shot was Nicolas Pagayunan. Instead, he uttered curses. ¹⁰ Then, very early the next morning, at about 5:30 o'clock, he left his house and stayed with his brother in a neighboring municipality, ¹¹ and did not go home even to help the police in their investigation. ¹² Flight is an indication of a guilty mind.

The defendant-appellant also contends that treachery or alevosia was not charged in the information filed against him, or proven by the evidence presented by the prosecution at the trial.

The contention is without merit. The information filed in this case specifically stated that the accused, Saturnino Rey, armed with a.45 caliber pistol, wilfully, unlawfully and feloniously shot Nicolas Pagayunan "in a sudden and unexpected manner." This is sufficient allegation of treachery because a sudden and unexpected attack, without the slightest provocation on the person of the one attacked is the essence of treachery or alevosia. It is not necessary that the information should use specifically the word "alevosia" or treachery. It is sufficient if the information alleges facts in clear and explicit language which would show treachery or alevosia without the use of the specific word. ¹³

Treachery in the shooting of Nicolas Pagayunan was established by the testimony of Babette Pagayunan who declared that the accused-appellant suddenly and without warning shot the deceased as the latter was waiting for his pail to be filled with water and while talking to the son of the accused-appellant. The attack was sudden, unexpected, without warning, and without giving the victim an opportunity to defend himself or repel the aggression. In fact, the deceased did not sense any danger that he would be shot by the defendant-appellant as there was no previous grudge or misunderstanding between them.

The claim of the defendant-appellant that he had fired a warning shot into the air appears to be an afterthought. Babette Pagayunan categorically declared that her brother, Nicolas Pagayunan, was hit on the first shot. Her testimony, on cross examination, reads as follows:

Q How many shots did Saturnino Rey the accused, direct to your brother?

A Two shots were delivered by Saturnino Rey. The first shot hit my brother. I did not know whether the second shot hit my brother. After the first shot my brother staggered towards Roban. ¹⁴

Besides, the shots were fired in rapid succession so that the first shot could not serve as a warning shot. Babette Pagayunan stated:

Q How long after the first shot did you hear the second shot?

A Seconds only. The interval was seconds.

Q So that the second shot came right after the first shot?

A Yes, sir. ¹⁵

The defendant-appellant, Saturnino Rey, also testified, as follows:

Q You testified a while ago that you fired two shots. How long after you fired the first shot that you also fired the second shot?

A The interval was only seconds.

Q About two seconds?

A Three seconds or more.

Q But it could not be more than five seconds, right?

A No, sir. ¹⁶

As the People's counsel observed, if the version of the defendant-appellant were true, the empty shell would have fallen near the defendant-appellant's bed, inside his room, and not outside the house where Pat. Hanzel Villareal found it; and that the first shot would have hit a part of the house.

The trial court, therefore, correctly found the offense committed by the defendant-appellant to be murder, qualified as it was by treachery.

WHEREFORE, the judgment appealed from is AFFIRMED With costs against the appellant.

SO ORDERED.

Melencio-Herrera, J., (Chairman), Paras, Sarmiento, Regalado, JJ, With reservations as to the penalty only consistent with my dissent in P. vs. Millora.

Footnotes

1 Rollo, p. 15.

2 Id., pp. 26-27.

3 Appellant's Brief, pp. 62-64.

4 T.s.n. of October 27, 1986, pp, 4-6.

5 People vs. Llamera, G.R. No. L-21604-06, May 25, 1973, 51 SCRA 48, 57, and cases cited therein.

6 Decision, pp. 3-4.

7 T.s.n. of October 27, 1986, p. 16.

8 T.s.n of March 26, 1987, p. 17.

9 People vs. Pasco, Jr., G.R. No. L-45715-16, June 24, 1985, 137 SCRA 137.

10 T.s.n. of March 26, 1987, pp. 22-25.

11 Id., P. 11.

12 Id., p. 16.

13 Sec. 9, Rule 110, Rules of Court.

14 T.s.n. of November 27,1984, pp. 67-68.

15 Id., p. 68.

16 T.s.n. of March 26, 1987, p. 17