ALBERTO GARONG, G.R. No.

148971
Petitioner,

Present:

- versus -
QUISUMBING, J.,
Chairperson,
CARP
IO,
CARP
IO MORALES,
TING
A, and
PEOPLE OF
THE PHILIPPINES, VELASCO, JR., JJ.
Respondent.
Promulg
ated:

Novemb
er 29, 2006

x----------------------------------------------------------------
-------------------------x


D E C I S I O N

VELASCO, JR., J.:

Where two criminal cases arose from
one incident, and the accused cries self-defense,
it is incumbent upon the accused to prove all of
its elements. Self-defense is a factual allegation
which should be proved during trial. Since the
findings of the trial court are regarded with
finality, we cannot review such factual issue on
appeal.

The Case

This is a Petition for Review on
Certiorari
[1]
under Rule 45 assailing the August 9,
1996 Decision
[2]
of the Court of Appeals (CA) and
the March 10, 2000 Resolution
[3]
which denied
petitioners Motion for Reconsideration in the
case docketed as CA G.R. No. 14852, People of
the Philippines, Plaintiff-Appelle, v. Alberto
Garong, Accused-Appellant. The CA affirmed
the March 3, 1993 Joint-Decision of the Regional
Trial Court (RTC), Branch 39, Calapan, Oriental
Mindoro in Criminal Case No. C-3406 convicting
petitioner of frustrated homicide. We previously
denied petitioners Motion for Extension of time to
file petition in our August 15,
2001 Resolution
[4]
for breach of the material
dates rule. We further denied petitioners
Motions for Reconsideration in our October 3,
2001
[5]
and January 23,
2002
[6]
Resolutions. On June 19, 2002, however,
we set aside said Resolutions because of the
failure of petitioners counsel to state the material
dates in petitioners Motion for Extension of time
to file petition.
[7]
We likewise granted petitioners
request for a counsel de oficio on June 18,
2003.
[8]


The Facts

The case arose from the incident in the
evening of February 19, 1991 in Barangay Tibag,
Calapan, Oriental Mindoro which gave rise to two
(2) criminal cases. One was filed on May 10,
1991 against private complainant Gerson Morta,
which reads:

Criminal Case No. C-
3402


That in the evening of
February 19, 1991, or
thereabout, in barangay
Tibag, municipality of
Calapan, province of
Oriental Mindoro,
Philippines and within the
jurisdiction of this
Honorable Court, accused
GERSON MORTA, alias
BOYET with intent to kill
and malice aforethought,
did then and there,
willfully, unlawfully and
feloniously entered the
residential house of Efren
Fajardo by forcibly
destroying a portion of the
fence located at the back
thereof and once inside
said premises, accused
hurled a piece of wood at
Efren Fajardo who was
injured on his face and
immediately thereafter,
accused attacked,
assaulted and stabbed
Cesar Guevarra and
Alberto Garong with a pair
of knife thrusts on their
bodies, thus commencing
the commission of the
crime of homicide, but did
not perform all the acts of
execution which should
produce it by [reason] of
some cause[s] other than
his own spontaneous
desistance and i.e., the
victims were able to
successfully parry away
and evade the knife
thrusts from their bodies
and the sound of a
gunshot that scared the
accused; thus, accused
executed by overt acts all
the elements necessary
for the commission of
MULTIPLE ATTEMPTED
HOMICIDE with the
generic aggravating
circumstance of unlawful
entry being attendant in
the commission thereof.

CONTRARY TO
ARTICLE 249 IN
RELATION TO
ARTICLES 250 AND 48
OF THE REVISED
PENAL CODE.
[9]



The other case was filed on May 16,
1992 against petitioner together with Cesar
Guevarra and Efren Fajardo for the crime of
frustrated homicide, to wit:

Criminal Case No. C-
3406


That in the evening of
February 19, 1991, or
thereabout, in barangay
Tibag, municipality of
Calapan, province of
Oriental Mindoro,
Philippines and within the
jurisdiction of this
Honorable Court, accused
ALBERTO GARONG y
VILLANUEVA alias Bert,
CESAR GUEVARRA y
GARCIA and EFREN
FAJARDO y GUEVARRA,
with intent to kill and
conspiring, confederating
and mutually helping one
another, did then and
there, willfully, unlawfully
and feloniously use
violence upon the person
of one [G]ERSON
MORTA with the use of
hand knives and by firing
a hand gun at said victim,
thereby inflicting upon him
a gunshot wound located
at the left inferior buttocks
producing severe
hemorrhage, which would
necessarily cause his
death, thus performing all
the acts of execution
which should produce the
crime of homicide as a
consequence, but
nevertheless did not
produce it by reason of
causes independent of
their will, that is, by the
timely and able medical
management rendered on
said victim which
prevented his death; thus,
all of the accused
executed by overt acts all
the elements necessary
for the commission of the
crime of FRUSTRATED
MURDER.

CONTRARY TO
ARTICLE 249 IN
RELATION TO
ARTICLES 250 AND 48
OF THE REVISED
PENAL CODE.
[10]


To remedy the apparent inconsistent
position of the State to prosecute the two (2)
criminal cases which arose from one incident and
involved the same parties, the parties agreed that
the prosecutions evidence in one criminal case
would be adopted as defense evidence in the
other case and vice-versa.
[11]
On March 3, 1993,
the Oriental Mindoro RTC, Branch 39 made a
finding of facts which were adopted by the CA as
follows:

On February 19,
1991, in the evening,
while Gerson Morta was
on his way home from
work, and while passing
the narrow alley (iskinita)
in front of the house of
Efren Fajardo the former
pulled the nipa roofing of
the house of the latter
who was then
inside. This act was seen
by Cesar Guevarra who
took offense and berated
and scolded Gerson
Morta, saying Putang ina
mo Boyet, nagbabarako
ka yata and to which
Gerson Morta replied
Ano ngayon sa iyo kung
haklitin ko yon.

As both Gerson
Morta and Cesar
Guevarra were tipsy, one
word led to another until
they were poised to come
to grips had it not been for
the timely intervention of
one Efren Gentaroy who
separated them. Before
leaving the place after the
intervention of Efren
Gentaroy, Cesar
Guevarra threw things at
Gerson Morta, one of
which, a casserole, hitting
Gerson Morta at the back
of his head. Because of
this, Morta left with this
parting threat, Babalikan
kita.

A few minutes
thereafter, Gerson Morta
returned crashing thru the
wooden fence at the back
of the house of Efren
Fajardo and once inside
the compound, hurled the
piece of wood he was
carrying which landed on
the face of Efren Fajardo
and thereafter proceeded
to attack Cesar Guevarra
with his gulukan who,
however, was not hit by
the stab blows delivered
by said Morta because
Alberto Garong was able
to pull Guevarra away,
and because of this,
Morta turned his attention
to Alberto Garong and
proceeded to attack him
(Garong) with the same
gulukan, but Garong was
able to evade the
stabbing blows delivered
by Morta.

It was while Morta
was attacking Garong
who was retreating and
the trying [sic] to avoid the
thrusts of the former when
a single shot was
fired. Morta stopped,
turned around and
scampered away towards
the direction of his house
passing through the same
fence which he earlier
destroyed.

On the other hand,
the version of Gerson
Morta may be stated as
follows:

While coming from
work that night in
question, [Morta]
accidentally slipped on a
canal causing him to lean
rather heavily on the nipa
wall of the house of Efren
Fajardo which called the
attention of Cesar
Guevarra who then
scolded him and even
hurled things against
him. One of the things
thrown which landed on
[sic] his (Mortas) head at
the back was a
casserole. Morta
proceeded on his way to
his house because,
according to him, they
were drunk.

Upon reaching his
house Morta asked his
wife to prepare his clothes
as he was going to attend
the Bible study in a place
along the provincial
road. To wash himself he
opened the faucet located
on the ground floor of the
house of his mother who
was his neighbor and
finding that there was no
water in the faucet or tap,
he borrowed a pail from a
neighbor, disrobed, got a
towel and proceeded to
the well to clean or wash
himself.

When he was on his
way to a well and only
about one meter away
from the house of Cesar
Guevarra and Efren
Fajardo he saw the two
with Garong blocking the
road (nakaharang sa
kalye) and sensing
trouble, he turned around
and intended to return to
his house and while his
back was turned he was
shot from behind by
Alberto Garong and
company rushing towards
him and so he forced
himself to get up and
walked towards the
direction of his house and
Garong and company
pursued him but his
(Mortas) wife interceded.

Shortly after the
incident Police Officer
Cristobal Ramos repaired
to the crime scene and
saw drops of blood on the
alley leading to the house
of [Gerson] Morta.

PO1 Ricardo Vivas
together with PO3 Asilo
investigated the incident
in question. When PO1
Ricardo Vivas
investigated Gerson
Morta at
the Oriental Mindoro Provi
ncial Hospital, Gerson
Morta told him that
Alberto Garong shot
him. When said
policeman went to the
scene of incident he
talked with Cesar
Guevarra [and] Efren
Fajardo but the two did
not tell anything about the
assault made by Gerson
Morta against them and
Alberto Garong.

For the gunshot
wound sustained, Gerson
Morta was confined and
treated in
the Oriental Mindoro Provi
ncial Hospital for around
ten days and for which he
incurred expenses in the
amount of
P10,000.00. Had it not
been for the timely and
able medical assistance
rendered, Gerson Morta
would have died.

He was likewise
prevented from
performing his customary
labor as carpenter,
thereby depriving him of
his daily income of
P120.00 a day.
[12]



The trial court rendered the March 3,
1993 Joint Decision:

ACCORDINGLY, in
Criminal Case No. C-
3402, accused Gerson
Morta is acquitted of the
crime charged with
costs de oficio, for failure
of the prosecution to
prove his guilt beyond
reasonable doubt and the
bail posted for his
provisional liberty is
hereby cancelled.

x x x x

In Criminal Case No.
C-3406, the Court finds
accused Alberto Garong
guilty beyond reasonable
doubt, as principal, of the
crime of Frustrated
Homicide penalized under
Article 249 in relation to
Articles 6 and 50 of the
Revised Penal Code
by prision mayor.

Considering the
peculiar facts of the case
and applying Article 250
of the Revised Penal
Code the penalty lower by
one degree than that
provided by law may be
imposed.

Applying the
Indeterminate Sentence
Law accused Alberto
Garong is hereby
sentenced to suffer
imprisonment of FOUR
MONTHS of arresto
mayor, as minimum, to
FOUR YEARS and TWO
MONTHS of prision
correccional, as
maximum, together with
accessory penalties
provided by law and to
pay the costs.

Accused Alberto
Garong is likewise
ordered to indemnify the
victim Gerson Morta in the
amount of P15,000.00 by
way of actual and
compensatory damages,
without subsidiary
imprisonment in case of
insolvency.
[13]



Garong appealed the trial courts decision
to the CA; however, his appeal in CA-G.R. CR
No. 14852 was turned down as the August 9,
1996 Decision of the CA affirmed the March 3,
1993 Joint Decision of the Calapan, Oriental
Mindoro RTC.

His Motion for Reconsideration was
likewise rejected in the March 10,
2000 Resolution
[14]
of the CA.

Persistent, Garong now seeks relief from
the adverse rulings of the CA through the instant
petition before this Court.




The Issues

WHETHER THE CA
PROPERLY AFFIRMED
THE TRIAL COURTS
REJECTION OF
PETITIONERS PLEA OF
SELF-DEFENSE; AND

WHETHER THE CA
PROPERLY AFFIRMED
THE TRIAL COURTS
CONVICTION OF
PETITIONER FOR
FRUSTRATED
HOMICIDE

The Courts Ruling

The petition has no merit.

Petitioner contends that he acted in self-
defense against the real aggressor, Gerson
Morta. He theorizes that the plea of self-defense,
if considered, would introduce an element of
reasonable doubt which would entitle him to
acquittal.
[15]
Petitioner also asserts that
reasonable doubt exists in his favor given the
inconsistencies of the complainants eyewitness,
Reylita Nery, who identified the petitioner as the
gunman. To bolster petitioners claim that
Gerson Morta was the aggressor, he presented
the testimony of Gliceria Aldovino, a witness who
allegedly saw Gerson Morta attack the
petitioner.
[16]
Petitioner also disputes the
circumstantial evidence against him as
insufficient proof of his culpability; and lastly, he
argues that his motive was not proven in trial and
that the trial court erred in awarding damages.
[17]


In essence, what petitioner is actually
asking the Court is to determine whether he
acted in self-defense, which is essentially a
question of fact.
[18]
We have held repeatedly that
this Court is not a trier of facts. In petitions
brought under Rule 45 of the Revised Rules of
Court, only questions of law can be
reviewed.
[19]
Since the petition is anchored on
the claim of self-defense which is a factual
allegation already rejected by the trial and
appellate courts, the petition can be denied
outright.

Although there are exceptions to Section
1, Rule 45, the instant petition does not
convincingly fall in any of the exceptions. The
grounds relied upon by the petitioner: when the
lower court has gravely abused its discretion,
when the judgment is based on a
misapprehension of the facts, when the findings
of fact are not supported by the records or are so
glaringly erroneous or are not supported by
competent evidence,
[20]
are not present in this
case. In contrast, the trial courts findings of fact
are supported by evidence and as such, were
affirmed by the CA.

Petitioner however charges the CA for
departing from the usual course of judicial
proceedings in affirming the findings of the trial
court.
[21]
On the contrary, we have consistently
held that findings of trial courts are accorded the
highest degree of respect, if not finality. Factual
findings of the trial court, adopted and confirmed
by the CA, are final and conclusive and may not
be reviewed on appeal.
[22]
Moreover, we do not
see any departure from the usual course of
appellate reviewthe CA weighed the
assignments of error made by petitioner against
the trial courts findings.

The CA considered the following
circumstantial evidence found by the trial court:

1. Neither
Garong nor any of his
companions reported the
incident in question to the
police authorities or to the
barangay officials of
Tibag, Calapan, Oriental
Mindoro.

2. Efren Fajardo
who claimed that he was
hit on the face by Morta
with a wooden club did
not submit himself to
medical examination or
treatment.

3. Shortly after
the incident the police
officer who repaired to the
crime scene saw drops of
blood on the alley leading
to the house of Gerson
Morta.

4. Gerson Morta
told the police investigator
who investigated him in
the hospital that Alberto
Garong shot him while
Cesar Guevarra and
Efren Fajardo did not tell
the policeman, who went
to the crime scene and
talked to them, anything
about the assault made
by Gerson Morta against
them and Garong.

5. Alberto
Garong admitted that he
had a gun which he used
to fire during New Year
and which he surrendered
during the last election.
[23]



For self-defense to prosper, there must
be: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on
the part of the person defending himself.
[24]
The
burden of proving the elements of self-defense
shifts to the accused. In this case, the
prosecution presented the following compelling
evidence, among others: 1) positive identification
by the complainant; 2) physical evidence of blood
drops found by the police officer; 3) the
admission of petitioner that he had a gun at the
time of the incident; and 4) the point of entry of
the gunshot in the complainants left
buttock. The foregoing circumstantial and pieces
of physical evidence disprove the claim of self-
defense. While petitioner harps on the alleged
complainants unlawful aggression, the trial court
found that there was no proof beyond reasonable
doubt against the complainant. Hence, Gerson
Morta was acquitted in Criminal Case No. C-
3402. Assuming arguendo that Gerson Morta
was the aggressor, petitioner must prove the
existence of the two (2) other elements of self-
defense: the aforecited second (2nd) and third
(3rd) elements. A mere allegation of self-defense
will not exempt Garong from criminal
liability. Petitioner should squarely meet the
circumstantial and physical evidence presented
by the prosecution. Unfortunately, there was no
sufficient or satisfactory explanation for the
aforementioned evidence against the petitioner.

With regard to petitioners failure to
immediately report the incident to the police, the
Solicitor General pointed out in his
Comment
[25]
that petitioners excusethat he
had to attend a funeral in Manilais feeble. It is
contrary to common human experience to
immediately leave the place of the incident
without reporting to the police.
[26]
As regards the
inconsistencies in the testimony of the witness,
the CA held:

Regarding the
inconsistencies and
discrepancies referred to
by accused-appellant,
suffice it to state that they
are only minor details
which do not affect the
credibility of the
witnesses. In fact, they
are even considered
badges of truth and
candor (People vs.
Gamboa, 194 SCRA
572). Besides, Our
Supreme Court in the
case of People vs.
Gabaton (203 SCRA
447) ruled that witnesses
possessed with different
capacities for observation
cannot be expected to
recall with accuracy or
uniformity, matters
connected to the main
overt act.

From the Peoples
brief and the records of
the case, it can be
gleaned that the Solicitor-
General correctly
observed that proof
beyond reasonable doubt
is shown by questioning
the testimony of the
complainant in court
[27]
x x
x


We reiterate that the determination of the
sufficiency of evidence and the said courts
determination on the credibility of witnesses are a
question of fact that is not, as a general rule,
subject to the Courts review.
[28]
As regards
petitioners claim that motive was not proven
during trial, the CA reasoned:

An apparent lack of
motive for committing a
criminal act, as argued by
accused-appellant, does
not necessarily mean that
there is none. It may be
hidden away or
inaccessible to Our
observation(People vs.
Taneo, 58 Phil. 255).
Moreover, the rule is
well-settled that the
prosecution need not
prove motive on the part
of the accused when the
latter has been positively
identified as the author of
the crime (People vs.
Conceron, 229 SCRA
551). Motive would not
bar conviction of the
accused as long as the
crime itself and the
identity of the perpetrator
had been indubitably
established (People vs.
Layam, 234 SCRA 424).
In the case at bench,
accused-appellant
was positively
identified. Therefore,
there is no dispute about
identification.
[29]



Given these findings, we find no reason
to warrant the reversal of the judgment of
conviction.

WHEREFORE, the instant petition
is DISMISSED. The August 9, 1996 Decision
and the March 10, 2000 Resolution of the Court
of Appeals in CA-G.R. CR No. 14852 and the
March 3, 1993 Joint Decision of the Calapan,
Oriental Mindoro Branch 39 Regional Trial Court
in Criminal Case No. C-3406 are AFFIRMED IN
TOTO.

Costs against petitioner.

SO ORDERED.


THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ARTURO CAVERTE and
TEOFILO CAVERTE, accused-appellants.
D E C I S I O N
DE LEON, JR., J.: olanski
Before us on appeal is the Decision
[1]
dated
January 27, 1995 of the Regional Trial Court of
Tagbilaran City, Branch 1, finding appellants
Teofilo Caverte and Arturo Caverte guilty of
Murder in Criminal Case No. 8126 and appellant
Arturo Caverte guilty of Attempted Murder in
Criminal Case No. 8127.
The Information for Murder in Criminal Case No.
8126 against appellants Teofilo Caverte and
Arturo Caverte and the Information for Attempted
Murder in Criminal Case No. 8127 against
appellant Arturo Caverte, respectively read, as
follows:
Criminal Case No. 8126:
"That on or about the 8th day of
November, 1992, in the
municipality of Pilar, province of
Bohol, Philippines, and within
the jurisdiction of the Honorable
Court, the above-named
accused, conspiring,
confederating and mutually
helping each other, with intent to
kill and treachery by suddenly
attacking the victim without
giving the latter an opportunity to
defend himself, taking
advantage of superior strength,
did then and there wilfully,
unlawfully and feloniously attack,
assault and stab with the use of
a stainless kitchen knife and
shoot with the use of 12 gauge
shotgun one Abdon Richard
Alesna thereby inflicting mortal
wounds or injuries on the vital
parts of the body of the said
victim which caused his
immediate death, to the damage
and prejudice of the heirs of the
said victim.
Acts committed contrary to the
provisions of Article 248 of the
Revised Penal Code with the
aggravating circumstance of
nighttime being purposely
sought for or taken advantage of
by the accused to facilitate the
commission of the crime."
Criminal Case No. 8127:
"That on or about the 8th day of
November, 1992, in the
municipality of Pilar, province of
Bohol, and within the jurisdiction
of this Honorable Court, the
above-named accused, with
intent to kill and without
justifiable cause and with
treachery, by suddenly attacking
the victim without giving the
latter an opportunity to defend
himself, did then and there,
willfully, unlawfully and
feloniously attack, assault and
shoot one Nersas Petalcorin
hitting the latters left forearm
with the use of a .38 caliber
revolver, thus the said accused
having therefore commenced the
commission of the crime of
Murder directly by overt acts, but
did not perform all the acts of
execution which would have
produced the felony by reason of
some cause or accident other
than his own spontaneous
desistance, to wit: the timely
escape of the victim from the
scene of the crime and failure of
the accused to inflict a fatal
injury to the victim; to the
damage and prejudice of the
said offended party.
Acts committed contrary to the
provisions of Article 248 of the
Revised Penal Code in relation
to Articles 6 and 51 of the same
Code." Missc
Upon being arraigned, appellants Teofilo Caverte
and Arturo Caverte pleaded not guilty to the
Information for Murder in Criminal Case No.
8126. Appellant Arturo Caverte likewise pleaded
not guilty to the Information for Attempted Murder
in Criminal Case No. 8127. The prosecution and
the defense agreed on a joint trial of both criminal
cases.
The evidence of the prosecution shows that in
the evening of November 8, 1992, Engr. Nersas
Petalcorin, Chief Field Engineer of Hanil
Development Company Ltd. located in Barangay
del Pilar, Pilar, Bohol, was drinking liquor with
fellow workers Engr. Felixberto Calamba and
Richard Alesna in the staff house inside the Hanil
compound. The son of Engr. Petalcorin,
Giovanni, was also around in the staff house.
[2]

At around 9:30 oclock Engr. Petalcorin went to
the canteen which is approximately sixty (60)
meters away from the staff house to buy
cigarettes. Since the door of the canteen was
already closed, he decided to try the store
located outside the compound. Upon reaching
the main gate, however, he found that the store
outside the compound was closed. As he turned
away from the main gate to join his companions
in the staff house, he heard a clicking sound from
the guard house which is located just beside the
main gate. He recognized the appellant, Arturo
Caverte, who was on the elevated platform of the
guard house aiming his service revolver at him.
At almost the same instant, appellant Arturo
Caverte fired his gun twice, hitting Petalcorin in
the left forearm.
[3]

Petalcorin lost his balance due to the impact of
the gunshot. However, he managed to stand and
immediately ran outside the compound to seek
help. Along the national highway, he met the
barangay captain of del Pilar who took him to the
house of a certain Melchor where he was
administered first aid treatment.
[4]

Petalcorin was subsequently taken on board a
company car to Simon Toribio Memorial Hospital
in Carmen, Bohol. After the initial treatment
there, he was transferred to Gov. Celestino
Gallares Hospital in Tagbilaran City where he
was confined for at least twelve (12) hours. The
attending physician, Dr. Manuel Relampagos,
opined that the injury sustained by Petalcorin
which penetrated his left forearm required at
least thirty (30) days to heal.
[5]

After recovering from his gunshot wound,
Petalcorin resigned from his work.
[6]
Misspped
Meanwhile, upon hearing the two (2) gunshots, it
appeared that Giovanni and his companions in
the staff house went outside to investigate.
Giovanni proceeded to the canteen where he
saw Richard Alesna who was conversing with a
Korean employee near the kitchen. After the said
conversation, appellant Teofilo Caverte appeared
in the canteen holding a knife. Teofilo
approached Richard Alesna and they grappled
for possession of the knife. In the meantime,
Arturo Caverte appeared, holding a shotgun, and
commanded Richard Alesna to kneel before him.
Alesna refused, and Teofilo allegedly stabbed
him. Arturo also shot Richard Alesna with his
shotgun. Alesna was rushed to the hospital
where he was pronounced dead on arrival.
[7]

Dr. Lourdes Atup-Tan, Municipal Health Officer of
Pilar, Bohol, conducted the post mortem
examination on the body of Richard Alesna. Her
Autopsy Report
[8]
dated November 9, 1992
shows the following findings, to wit:
1.......Gunshot wound on the
right posterior lumbar region 3.5
inches diameter irregular edges,
presence of powder burns,
penetrating right anterior
abdominal lumbar region.
2.......Exit wound right anterior
lumbar region 1/2 inch diameter.
3.......Eight pieces rounded
metallic foreign body 1/4 inch
diameter, 3 pieces penetrate
lumbar spinal cord nerve, blood
vessels, 4 pieces lodge right
pubic muscles, bones and blood
vessels, 2 pieces right pelvic
region perforating urinary
bladder.
4.......Presence of massive
hemorrhage noted several blood
clots.
Cause of Death: Shock
secondary to massive
hemorrhage due to gunshot
wound.
SPO3 Hermogenes Cabanes who was the
policeman on duty at the Pilar police
headquarters in Pilar, Bohol in the evening of
November 8, 1992, testified that appellant Arturo
Caverte surrendered to him at around midnight
on November 8, 1992 for allegedly shooting
somebody inside the compound of Hanil
Development Company in Barangay del Pilar.
Appellant Arturo Caverte who was then
accompanied by the barangay captain of
Barangay del Pilar, surrendered to him a .38
caliber revolver
[9]
and its two (2) empty
shells.
[10]
Sppedx
SPO3 Cabanes immediately proceeded to the
Hanil compound in Barangay del Pilar to
investigate. During his inquiry, the people therein
handed to him a hunting knife
[11]
and a
scabbard
[12]
which, according to them, "belonged
to the enemy of the security guard".
[13]
SPO3
Cabanes also recovered a slug
[14]
which he
turned over to SPO2 Venancio Mante, including
the other pieces of evidence that he had
recovered. The shotgun
[15]
which appellant Arturo
Caverte used in shooting Richard Alesna,
together with one empty shell, was turned over
by Gregorio Margate, Chief Security Officer of
Hanil Development Company, to SPO2 Mante in
the afternoon of November 9, 1992.
Appellant Arturo Caverte admitted having shot
Engr. Nersas Petalcorin and his nephew, Richard
Alesna, but interposed self-defense. Arturo
Caverte testified that he was a security guard of
the NICO Security Service Agency in Tagbilaran
City and was detailed at the compound of the
Hanil Development Company Ltd. in Barangay
del Pilar, Pilar, Bohol. On November 8, 1992, at
around 9:45 in the evening, Arturo Caverte and
his fellow security guard, Genaro Busbos, were
approached by Engr. Petalcorin and Richard
Alesna, both of whom appeared drunk, at the
guard house of Hanil Development Company.
Engr. Petalcorin pointed his finger at appellant
Caverte and remarked that the people of Pilar
were boastful. Simultaneously, Richard Alesna
pulled out a knife and stabbed the table in the
guard house three (3) times.
[16]
Arturo Caverte
drew his .38 caliber revolver and fired a warning
shot. Engr. Petalcorin then drew a short firearm
from his waist prompting Arturo Caverte to shoot
him in the arm.
[17]

After Petalcorin has fled, Alesna and Busbos
began grappling for possession of the knife.
When both had disengaged, Alesna ran towards
the staff house. Arturo Caverte and Busbos
pursued Alesna to take the knife. However,
Alesna attacked Arturo Caverte, thus forcing him
to shoot Alesna with a shotgun.
[18]
Thereafter,
Arturo Caverte surrendered to the police
accompanied by the head of the security guards,
Gregorio Margate.
Arturo Caverte belied the testimony of
prosecution witness Giovanni Petalcorin that
Teofilo Caverte stabbed Richard Alesna when
the latter refused to kneel as ordered by Arturo
Caverte. Arturo Caverte stated that his elder
brother, Teofilo, was in their house at the time of
the incident. Arturo had seen him there when he
dropped by before he surrendered to the police.
Arturo Caverte also stated that Giovanni
Petalcorin was not in the Hanil compound when
the incident occurred as he had not seen him
since his father, Engr. Petalcorin, and Richard
Alesna started drinking liquor at 6:00 oclock in
the evening of that day inside the staff
house.
[19]
Jospped
The testimony of defense witness Genaro
Busbos reveals that prior to the shooting incident,
Engr. Nersas Petalcorin and Richard Alesna,
who were both drunk, approached the
guardhouse situated at the main gate of Hanil
Development Company Ltd. Engr. Petalcorin
pointed his finger at Busbos and Arturo Caverte
and shouted that the people in Pilar, Bohol were
boastful ("hambogero"). Petalcorin repeated the
remarks three (3) times and to which Busbos
replied that they were not looking for a quarrel.
Apparently irked, Alesna brought out a knife that
prompted Arturo Caverte to draw his service
revolver and fire a warning shot. When Engr.
Petalcorin pulled a gun from his waist, Arturo
Caverte shot him on the arm. Petalcorin fell to
the ground but managed to get up and run.
Richard Alesna attacked Busbos with the knife
and the two grappled for possession thereof.
[20]

While Busbos and Alesna were grappling for
possession of the knife, Arturo Caverte fired at
Alesna twice but missed. Subsequently, Busbos
pushed Alesna and the latter ran outside the
guardhouse still holding his knife. Arturo Caverte
followed Alesna and shot him with his service
shotgun that caused his death.
[21]

Genaro Busbos belied the testimony of Giovanni
Petalcorin that Teofilo Caverte grappled with
Richard Alesna for the possession of the knife. In
addition, Busbos belied that Teofilo Caverte
stabbed Alesna with a knife when the latter
refused to kneel as ordered by Arturo Caverte.
He stated that Giovanni Petalcorin was brought
by his father to Hanil compound in the last week
of October, 1992. However, the young Petalcorin
had left and was no longer inside the compound
on November 8, 1992, when the shooting
incident occurred.
For his part, appellant Teofilo Caverte testified
that he was in the house of his parents in
Poblacion, Pilar, Bohol in the evening of
November 8, 1992. At about midnight, his brother
Arturo dropped by the house with Gregorio
Margate and informed him that he shot
somebody in the Hanil compound. Thereafter,
Arturo and Gregorio Margate proceeded to the
municipal building to surrender to the police.
Teofilo came to know that he was implicated in
the shooting incident only on February 6, 1992 or
three (3) months thereafter, when policeman
Rodrigo Butron informed him that a warrant for
his arrest was issued.
[22]

After analyzing the evidence, the trial court made
the following findings:
a)......That the accused Arturo
Caverte, a security guard of
Hanil Construction and his co-
accused Teofilo Caverte on
November 8, 1992 in the
Municipality of Pilar, Province of
Bohol conspiring and helping
each other with the use of a
shotgun and a kitchen knife
stabbed and shot to death the
victim Richard Alesna (Criminal
Case No. 8126, For:
Murder);Sppedjo
b)......That the accused Arturo
Caverte after shooting and
stabbing to death Richard
Alesna, Arturo Caverte
surrendered to SPO2 Venancio
Mante;
c)......That the accused Arturo
Caverte in the afternoon of
November 5(sic), 1992 at the
staff house of the Hanil
Compound located at Del Pilar,
Pilar, Bohol, attacked the
complainant Nersas Petalcorin
by shooting him with a .38
caliber revolver, hitting his left
forearm which, as a
consequence, the complainant
Nersas Petalcorin fell down and
subsequently stood up and ran;
d)......The fact of the killing of the
deceased victim Richard Alesna
is admitted by the accused
Arturo Caverte but interposed
self-defense;
e)......The accused Teofilo
Caverte brother of the accused
Arturo Caverte interposed the
defense of alibi.
The Court anchored its
conclusions not only (People vs.
Adlawon, Jr., 217 SCRA 489)
which the witnesses testify but
more particularly the demeanor
of the witnesses on the witness
stand (People vs. Camadlo, 217
SCRA 162). The Court believes
the prosecution witnesses
because they testified in a
spontaneous and straightforward
manner (People vs. Pacana, 218
SCRA 346).
The defense of alibi interposed
by the accused "the same can
not prevail over the positive
identification of the prosecution
witnessesthat alibi to be given
full faith and credit must not
leave any doubt as to its
plausibility (People vs. Gabatin,
203 SCRA 225; People vs.
Bragoes, 203 SCRA 555; People
vs. Urguis, 203 SCRA 738;
Seton vs. Court of Appeals, 204
SCRA 473; People vs. Lee, 204
SCRA 900; People vs. Babac,
204 SCRA 978).
It is the view of the Court that in
the commission of the crime as
charged in Criminal Case No.
8126 there was conspiracy as it
can be "inferred from the acts of
the accused Arturo Caverte and
Teofilo Caverte, as brothers
(People vs. Nabaluna, 142
SCRA 448). It is inferred from
the acts of the accused (People
vs. Abueg, 145 SCRA
622). Nexold
The crime committed falls within
the purview of Murder for "the
killing of the victim was
attended with the presence of
the qualifying circumstance of
abuse of superior strength
(People vs. Milas, 218 SCRA
473). The killing was committed
with treachery (People vs.
Manrique, Jr., 223 SCRA 196).
Based upon the evidence
adduced by the prosecution and
defense, the prosecution has
proved the guilt of the accused
in Criminal Cases Nos. 8126 and
8127.
[23]

Accordingly, the trial court in Criminal Case No.
8126, found appellants Teofilo and Arturo
Caverte guilty of Murder and sentenced each of
them to suffer an imprisonment
of reclusion perpetuaand to pay the heirs of the
victim P50,000.00 by way of indemnity and
P50,000.00 for moral and exemplary damages
without subsidiary imprisonment in case of
insolvency. In Criminal Case No. 8127, the trial
court found appellant Arturo Caverte guilty of
Attempted Murder and sentenced him to suffer
the indeterminate penalty of "TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY, the
Minimum of the Medium Period of Prision
Correccional, as Minimum, to EIGHT (8) YEARS,
EIGHT (8) MONTHS and ONE (1) DAY, the
Minimum of Prision Mayor in its Medium Period,
as Maximum, and to pay P50,000.00
representing indemnity and exemplary damages,
without subsidiary imprisonment in case of
insolvency."
[24]

In assailing the aforequoted Decision of the trial
court, appellants Arturo Caverte and Teofilo
Caverte raised the following assignment of
errors: Miso
I
THE HONORABLE TRIAL
COURT ERRED IN
CONVICTING ACCUSED-
APPELLANTS IN THE TWO (2)
CASES EVEN IF THE
EVIDENCE ADDUCED CAN
NOT IRREMEDIABLY
ESTABLISH THEIR GUILT
BEYOND REASONABLE
DOUBT; AND
II
THE HONORABLE TRIAL
COURT ERRED IN NOT
GIVING FULL FAITH AND
CREDIT TO THE VERSION
ADDUCED BY THE DEFENSE
WHICH, IF OBJECTIVELY AND
DISPASSIONATELY
ANALYZED, IS MORE
NATURAL AND CONSISTENT
WITH TRUTH AND REASON.
[25]

In the Appellees Brief, the Office of the Solicitor
General recommended the acquittal of Teofilo
Caverte and the conviction of Arturo Caverte only
for homicide with the attendant mitigating
circumstance of voluntary surrender in Criminal
Case No. 8126 for murder; while it recommended
Arturo Cavertes acquittal in Criminal Case No.
8127 for attempted murder based on the
submissions therein made.
The respective witnesses of both parties
presented conflicting versions of the incident that
led to the wounding of Engr. Nersas Petalcorin
and the killing of Richard Alesna otherwise
known as Abdon Richard Alesna. In arriving at
the assailed decision, the trial court accorded full
faith and credence to the testimonies of
prosecution witnesses Nersas Petalcorin and
Giovanni Petalcorin, stating that the same appear
spontaneous and straightforward while it
dismissed or disregarded appellants Arturo and
Teofilo Cavertes respective defenses of self-
defense and alibi. It has been held that unless
the trial judge plainly overlooked certain facts of
substance and value which, if considered, might
affect the result of the case, his assessment of
the credibility of the witnesses must be
respected.
[26]
Hence, in that light, the merit of the
defenses respectively raised by the appellants in
the instant appeal depends primarily on whether
or not the trial court overlooked or disregarded
certain facts of substance or value which, if
properly considered, might affect its decision in
these criminal cases.
It may be noted that the victims and the appellant
Arturo Caverte, were all working in the compound
of the Hanil Development Company Ltd. Despite
this fact, the prosecution witnesses miserably
failed to show any ill motive on the part of
appellant Arturo Caverte that could have possibly
motivated him to shoot Engr. Nersas Petalcorin
and Richard Alesna. Manikx
On the other hand, it appears that prior to the
shooting incident Richard Alesna was scolded by
appellant Arturo Caverte for passing through the
barbed wire perimeter fence in entering the Hanil
compound. While Engr. Petalcorin claimed that
he had earlier patched up the differences
between appellant Arturo Caverte and his
nephew,
[27]
the same was apparently not so as
shown by the evidence adduced relative to the
incident in the evening of November 8, 1992.
The fact that the shooting incident occurred at
the vicinity of the guard house while Genaro
Busbos and appellant Arturo Caverte were in the
performance of their duty as security guards,
lends credence to the claim of the defense that
Engr. Petalcorin and Alesna were both drunk
when they approached the guard house and
started shouting insults at the security guards.
The testimony of Engr. Petalcorin that he came
to the main gate merely to look for a store to buy
cigarettes after failing to do so at the canteen,
does not inspire belief. The time honored test in
determining the value of the testimony of a
witness is whether or not such is in conformity
with knowledge and consistent with the common
experience of mankind.
[28]
It must be noted that
the shooting incident happened on November 8,
1992 which was a Sunday.
[29]
Having been
employed in the company for sometime, Engr.
Petalcorin should have known all along that the
canteen inside the Hanil compound was not open
for business on Sundays and that the store
outside the compound was already closed at that
time.
Curiously enough, Engr. Petalcorin never filed a
complaint with the management of the Hanil
Development Company Ltd. against appellant
Arturo Caverte and Genaro Busbos in connection
with the shooting incident. He even resigned from
the said company effective on the last day of
November 1992. Such actuation of Engr.
Petalcorin is inconsistent with the attitude of a
person who is totally free from blame.
Likewise, the lower court failed to note that the
testimony of Giovanni Petalcorin is laden with
improbabilities that detract from his credibility. As
the Solicitor General aptly observed, it appears
strange why the young Giovanni Petalcorin
should proceed to the canteen when he testified
that the reported gunshots came from the
direction of the guardhouse. Also, Giovanni
Petalcorin could not have seen appellant Teofilo
Caverte inside the canteen whom he claimed to
be standing and holding a knife
[30]
for the reason
that the canteen did not open for business on
that day which was a Sunday. Engr. Petalcorin
himself noted that the door of the canteen was
closed at that time.
[31]
In addition, it is difficult to
imagine that appellant Arturo Caverte would
shoot Richard Alesna at the back with a shotgun
while Richard Alesna and appellant Teofilo
Caverte were grappling for possession of the
knife as Giovanni would make it appear.
Considering the nature of the firearm used by
Arturo Caverte, which in this case was a shotgun,
there was great possibility that his brother,
Teofilo, could have been hit also inasmuch as
there was an exit wound at Alesnas right anterior
lumbar region.32 [Exhibit "A".32 In this
connection, it has been held that testimonial
evidence to be believed must not only proceed
from the mouth of a credible witness but must
foremost be credible in itself.
[32]
Manikan
Consequently, the testimony of defense witness
Genaro Busbos appears more convincingly
reflective of the actual shooting incident on
November 8, 1992. There is no apparent motive
on his part for giving his testimony except to tell
the truth. As a matter of fact, we can not perceive
from his testimony any bias or partiality to any of
the protagonists. The pertinent portions of his
unbiased and credible testimony are quoted
hereunder, to wit:
(ATTY. TINAMPAY TO
WITNESS)
Q:......That evening of November
8, 1992 during your Guard duty,
did you observe anything
unusual that happened?
A:......Yes, sir.
Q:......What was it?
A:......Engr. Nersas Petalcorin
and Engr. Abdun Richard Alesna
came near to us.
xxx
Q:......When Engrs. Nersas
Petalcorin and Richard Alesna
went or approached both of you,
what happened?
A:......They looked for trouble
with us because at that time
when they approached us, they
were drank (sic).
Q:......What did the two or one of
them say when they approached
both of you security guards?
A:......They pointed their fingers
at both of us one by one and
said that we who (sic) are from
Pilar are boastful (hambogero).
ATTY. TINAMPAY: We request
that the word "hambogero" be
reflected in the record.
Q:......Who of the two engineers
made that statement?
A:......It was Engr. Nersas
Petalcorin who said those words.
Q:......How about the other
engineer, Alesna, did he not say
similar statements to you both
(sic) security guards? Maniks
A:......He did not say anything.
Q:......How many times did Engr.
Petalcorin say those words or
remarks?
A:......Maybe he said that three
times.
xxx
Q:......When Engr. Nersas
Petalcorin made those
statements three times to both of
you Security Guards, what did
you or your co-Security Guards
(sic) Arturo Caverte do or react?
A:......I told Engr. Nersas
Petalcorin saying, "Sir, do not
make trouble with us." When I
said that, this Abdun Alesna
pulled his knife and he stabbed
the table.
Q:......How many times did Engr.
Abdun Alesna stab the table with
his knife?
A:......Three times.
xxx
Q:......When Engr. Abdun Alesna
stabbed the table three times
following which you remarked,
"Do not quarrel with us, Sir",
what did his co-Engineer do who
according to you was nearby?
A:......I saw that Engr. Nersas
Petalcorin pulled his gun from
his waist.
Q:......What gun was that, long
barreled or short barreled?
A:......Short barreled gun.
xxx
Q:......And with the gun Engr.
Nersas Petalcorin got from his
waist, what happened next?
A:......Arturo Caverte saw that
gun being pulled by Engr.
Nersas Petalcorin from his waist
and Arturo Caverte went up the
table and fired it (sic) Engr.
Nersas Petalcorin first.Oldmiso
Q:......So are you telling or
picturing to the Court that while
Engr. Nersas Petalcorin was
holding his short barreled gun
taken from his waist, Arturo
Caverte went on top of the table
and fired at Nersas Petalcorin.
A:......Arturo Caverte shot the
hand of Nersas Petalcorin.
xxx
Q:......Did you notice if Nersas
Petalcorin was hit?
A:......To my belief, I believed he
was hit.
Q:......And what happened after
Arturo Caverte fired his gun
once?
A:......Nersas Petalcorin
staggered and fell to the ground.
Q:......The same spot where he
was aimed at and hit?
A:......Yes, sir.
Q:......After that, what did Engr.
Nersas Petalcorin do?
A:......Engr. Nersas Petalcorin
stood up and ran outside the
compound.
Q:......When Engr. Nersas
Petalcorin got his short barreled
gun from his waist, what was the
other engineer, Richard Abdun
do (sic)?
A:......Engr. Alesna thrusted his
knife at me.
xxx
Q:......And were you hit?
A:......I was able to hold his
hand.
[33]

xxx
Q:......Then what happened
next?
A:......Arturo Caverte told me to
release Richard Alesna because
Arturo Caverte had no more
bullets.
Q:......Did you release Richard
Alesna?
A:......I released him pushing him
towards outside the guard
house.
Q:......And what happened to
him? Ncmmis
A:......Richard Alesna ran
towards the office.
Q:......Do you know what
happened to Richard Alesna?
A:......Arturo Caverte followed.
Q:......And what happened.
A:......While running, Arturo
Caverte is (sic) carrying his gun
and followed Richard Alesna.
Q:......Why did Arturo Caverte
followed (sic) Engr. Richard
Alesna?
FICAL MAGDOZA: Witness is
incompetent.
COURT: Witness may answer.
A:......Arturo Caverte followed
Richard Alesna because Richard
Alesna was carrying a knife.
Q:......At the time that Arturo
Caverte followed Richard Alesna
with a knife, how many times did
Arturo Caverte shot (sic) Richard
Alesna?
A:......Once.
[34]

From the foregoing there appears sufficient
justification for appellant Arturo Caverte to shoot
Engr. Nersas Petalcorin in self-defense. There is
self-defense when the following elements concur:
(1) unlawful aggression on the part of the person
injured or killed by the offender; (2) reasonable
necessity of the means employed to prevent or
repel it; and (3) lack of sufficient provocation on
the part of the person defending himself.
[35]
Engr.
Nersas Petalcorins act of pulling a gun from his
waist despite the firing of a warning shot by
Arturo Caverte to stop Richard Alesna from
further stabbing the table inside the guardhouse
clearly shows his intention to use his gun against
either or both security guards Arturo Caverte and
Genaro Busbos, thereby exposing their persons
to actual and imminent danger. The fact that
Nersas Petalcorin was not pursued anymore
upon his escape after he was hit on the wrist
clearly indicates that appellant Arturo Caverte did
not intend to kill but simply to defend himself from
the expected attack. During the investigation
which was conducted after he surrendered,
Arturo Caverte narrated the same circumstances
before the police.Ncm
However, we do not reach the same conclusion
with respect to the killing of Richard Alesna by
appellant Arturo Caverte. Having invoked self-
defense, the burden was shifted on Arturo
Caverte to prove by clear and convincing
evidence that his victim was the aggressor and
that he did not initiate any sufficient provocation.
The accused must rely on the strength of his own
evidence and not on the weakness of the
prosecutions evidence the moment the accused
admits the commission of the alleged criminal
act.
[36]

From the abovequoted testimony of defense
witness Genaro Busbos, Richard Alesna was
already running toward the staff house when
appellant Arturo Caverte still pursued and shot
him at the back with his service shotgun. This
account of Genaro Busbos is consistent with the
findings of Dra. Atup-Tan that Alesna suffered a
gunshot wound at the right posterior lumbar
region penetrating at the right anterior lumbar
region.
[37]
Thus, while the initial aggression may
have come from Alesna, Arturo Caverte was not
justified in shooting him at the back while the
latter was running away to the staff house for the
reason that his person (Arturo Caverte) was no
longer exposed to any actual or imminent
danger. It is a doctrinal rule that when an
unlawful aggression which has begun no longer
exists, the one making a defense has no right to
kill or even to wound the former aggressor.
[38]

However, the crime committed by appellant
Arturo Caverte in Criminal Case No. 8126 is
homicide and not murder in view of the absence
of the qualifying circumstance of treachery. There
is treachery when two conditions concur, to wit:
(1) the employment of means of execution that
gives the person attacked no opportunity to
defend himself or to retaliate; and (2) deliberate
or conscious adoption of the means of
execution.
[39]
Treachery exists where the attack
was perpetrated suddenly and without
warning.
[40]
It should be pointed out in the case at
bench that Richard Alesna earlier threatened
appellant Arturo Caverte and Genaro Busbos by
stabbing the table inside the guardhouse. Alesna
could have even succeeded in stabbing Busbos
had the latter not been quick enough to parry the
blow. Hence, the subsequent act of shooting
Alesna by Arturo Caverte was not preconceived
nor deliberately adopted but as held in a case, it
was just triggered by the sudden infuriation on
the part of the appellant because of the
provocation on the part of the victim.
[41]
Scncm
Likewise, conspiracy and abuse of superior
strength are not borne by the evidence on record.
The only evidence that tends to link appellant
Teofilo Caverte to the crime is the testimony of
Giovanni Petalcorin who testified that he
allegedly saw appellant Teofilo Caverte inside
the canteen holding a knife. He also stated that
Teofilo Caverte subsequently stabbed Richard
Alesna with the same knife. We disregard the
testimony of Giovanni Petalcorin for being highly
incredible. It has been established that the
canteen was closed during the incident.
Moreover, the Autopsy Report prepared by Dra.
Atup-Tan clearly belies the presence of any stab
wound on the body of the victim, Richard Alesna.
Also, the ownership of the knife by Richard
Alesna was established by the credible testimony
of Genaro Busbos which, in turn, was supported
by the testimony of the police officer who
investigated the case. SPO3 Hermogenes
Cabanes testified that he recovered a knife and a
scabbard during his investigation and he learned
that the same "belonged to the enemy of the
guard". Being an officer of the law, the unbiased
testimony of SPO3 Cabanes bears the badge of
credence and is entitled to high respect.
Additionally, note should be made that Giovanni
was a mere guest of his father, Engr. Nersas
Petalcorin, inside the compound of Hanil
Development Company Ltd. Having stayed inside
the compound for a relatively short time, it is safe
to assume that he mistook Genaro Busbos, who
is admittedly the companion of appellant Arturo
Caverte in the evening of the incident, for
appellant Teofilo Caverte as the person who
grappled with Richard Alesna for possession of
the knife. In any event, Giovanni himself impliedly
admitted his lack of familiarity with the other
persons inside the Hanil compound.
[42]

In view of the inconclusive and unreliable
identification by Giovanni Petalcorin, Teofilo
Cavertes defense of alibi assumes credence and
importance. While alibi is a weak defense and
the rule is that it must be proved to the
satisfaction of the court, the said rule is never
intended to change the burden of proof in
criminal cases, otherwise, we will see the
absurdity of an accused being put in a more
difficult position where the prosecutions
evidence is vague and weak as in the instant
case.
[43]

WHEREFORE, the Decision of the Regional Trial
Court of Tagbilaran City, Branch 1, in Criminal
Case No. 8126, for Murder, is hereby MODIFIED.
Appellant Teofilo Caverte is ACQUITTED of the
crime of murder on the ground of reasonable
doubt while appellant Arturo Caverte is
CONVICTED only of the crime of homicide with
the attendant mitigating circumstance of
voluntary surrender. The imposable penalty on
the appellant Arturo Caverte, under Article 249 of
the Revised Penal Code for homicide,
is reclusion temporal in its minimum period.
Applying the Indeterminate Sentence Law, the
penalty hereby imposed on appellant Arturo
Caverte is the indeterminate penalty of twelve
(12) years of prision mayor maximum, as
minimum, to fourteen (14) years and eight (8)
months of reclusion temporal minimum, as
maximum; and to pay the heirs of the victim,
Abdon Richard Alesna, the amount of P
50,000.00 by way of civil indemnity ex delictoand
P 50,000.00 as moral damages. Sdaamiso
Appellant Arturo Caverte is hereby ACQUITTED
in Criminal Case No. 8127 for the alleged crime
of Attempted Murder on the ground of self
defense and as justified under Article 12(1) of the
Revised Penal Code.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. JESUS SUMIBCAY y
REPOLLO, accused-appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
This is an appeal from the decision
[1]
of the
Regional Trial Court of
Urdaneta, Pangasinan, Branch
47, in Criminal Case Nos. U-5638 and U-
5639, convicting accused-appellant of the crime
of Murder and Attempted Murder.
On August 28, 1996, accused-appellant was
charged in three separate informations for the
crimes of Illegal Possession of Firearms, Murder
and Attempted Murder. He was acquitted of
Illegal Possession of Firearms, but was convicted
of murder and attempted murder under the
following informations:
In Criminal Case No. U-5638, for Attempted
Murder:
That on or about the 6th day of November 1989,
at brgy. Guiset Norte, municipality of San
Manuel, province of Pangasinan, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with a
cal. 38 revolver (paltik), with intent to kill, with
treachery, evident premeditation and with the use
of superior strength, did then and there, wilfully,
unlawfully and feloniously assault and shoot
Flordeliza Sampilo y Saballa, but missed, thus
accused has commenced the commission of the
crime of Murder directly by overt acts but did not
perform all the acts of execution which should
have produced the felony by reason of some
cause other than the spontaneous desistance of
the accused, to the damage and prejudice of said
Flordeliza Sampilo.
CONTRARY to Article 248 in relation to Art. 6 of
the Revised Penal Code.
[2]

In Criminal Case No. U-5639, for Murder:
That on or about the 6th day of November 1989,
at barangay Guiset Norte, municipality of San
Manuel, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, being then armed with an
unlicensed Cal. 38 revolver (paltik), with intent to
kill, with treachery, evident premeditation and
with the use of superior strength, did then and
there wilfully, unlawfully and feloniously assault
and shoot GLICERIO SAMPILO, inflicting upon
him the following injury: Gunshot wound 1-
Entrance, anterolateral aspect, lower 3rd, which
caused his death, as a consequence, to the
damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal
Code.
[3]

Upon arraignment, accused-appellant
pleaded not guilty to the charges against
him. Trial thereafter ensued.
The version of the prosecution runs thus: In
the morning of November 5, 1989, Flordeliza
Sampilo, saw accused-appellant Jesus Sumibcay
digging in her backyard without
permission. When she confronted him, accused-
appellant did not reply, but stopped
digging. Later, in the afternoon, accused-
appellant returned drunk and threatened to kill
Flordeliza, but she and her husband, Glicerio
Sampilo, ignored him.
[4]

The next day, November 6, 1989, at around
3:00 in the afternoon, accused-appellant
suddenly showed up holding a gun, five meters
away from the sari-sari store of the Sampilo
spouses. He cursed and threatened to kill
Flordeliza, who was then tending the
store. Accused-appellant shot her but
missed. Flordeliza hid at the back of the
refrigerator and thereafter secured the safety of
their youngest child, upon the instruction of
Glicerio.
[5]

Outside the store, Glicerio slowly
approached accused-appellant with his arms
raised, saying No, I will not fight, Manong, I will
not fight.
[6]
As Glicerio advanced, accused-
appellant backed off little by little, but kept the
gun pointed at Glicerio. When Glicerio was
approximately two meters away from him,
accused-appellant fired his gun hitting him on the
neck. Thereafter, accused-appellant fled.
[7]

The whole incident was witnessed by
Lynette De Leon, who was standing on the
roadside, fifteen meters away from the victim and
accused-appellant.
[8]

Meanwhile, Glicerio was rushed to the
hospital where he expired the following
day. Before he died, he revealed to the
investigating police officers that it was accused-
appellant who shot him.
[9]

Dr. Felipe Tablada, the physician who
operated on Glicerio, testified that the victim
sustained a single gunshot wound on the neck.
The bullet entered the right side of the neck,
penetrating the upper part of the chest.
[10]

Accused-appellant, on the other hand,
claimed that the shooting of Glicerio was an act
of self-defense, and that the firing of the gun at
Flordeliza was accidental. The facts as
presented by the defense are as
follows: Sometime in October 1989, accused-
appellant was working in his backyard, using
stones from the yard of his neighbors, the
spouses Glicerio and Flordeliza Sampilo. He
noticed a commotion and when the window of the
couples house opened, he realized that they
were arguing about the stones he was using. He
heard Flordeliza insulting him, thus, he attempted
to explain that Glicerio gave his
permission. However, Flordeliza signaled him to
leave.
[11]

At around 3:00 in the afternoon of
November 6, 1989, accused-appellant passed by
the sari-sari store of the spouses. When
Flordeliza saw accused-appellant, she hurled
insults at him. Accused-appellant confronted her
and reiterated that Glicerio gave him permission
to use their stones in fixing the eroded portion of
his lot. Flordeliza got angry and commanded
Glicerio to get a gun and shoot accused-
appellant. Moments later, Glicerio went out and
poked a gun on accused-appellant. He tried to
pacify Glicerio but the latter was determined to
shoot him. Hence, accused-appellant grabbed
the gun and tried to wrestle it away from
Glicerio. In the ensuing scuffle, the gun went off
while directed towards Flordeliza. This prompted
Glicerio to comment, Look, one bullet was
wasted, it costs very expensive.
[12]
When the
gun again accidentally fired, Glicerio said, You
see two bullets are already wasted, if you will not
get me loose, Ill shoot you.
[13]
Determined to
save his life, accused-appellant twisted the gun
towards Glicerios neck. It was at this instance
when the gun went off, hitting Glicerio on the
neck.
[14]

On November 7, 1997, the trial court
rendered the assailed decision. The dispositive
portion thereof reads:
WHEREFORE, in view of all the foregoing,
judgment is rendered as follows:
IN CRIMINAL CASE NO. U-5638
(1) Finding the accused GUILTY
beyond reasonable doubt of the
crime of ATTEMPTED MURDER,
he is hereby sentenced to suffer
imprisonment of FOUR YEARS,
TWO MONTHS and ONE DAY
of prision correccional maximum
as minimum to TEN YEARS and
ONE DAY of prision mayor as
maximum, applying the
Indeterminate Sentence Law.
(2) Accused is hereby ordered to pay
the complainant and victim
FLORDELIZA SAMPILO the sum
of FIVE THOUSAND (P5,000.00)
PESOS as an indemnity.
IN CRIMINAL CASE NO. U-5639
(1) Finding the accused GUILTY
beyond reasonable doubt of the
crime of MURDER, he is hereby
sentenced to suffer imprisonment
of RECLUSION PERPETUA, with
all the accessory penalties provided
by law.
(2) The accused is hereby ordered to
pay the heirs of the deceased
GLICERIO SAMPILO the sum of
FIFTY THOUSAND (50,000.00)
PESOS as indemnity, moral and
exemplary damages in the sum of
P50,000.00; consequential
damages in the sum of
P58,500.00 and attorneys fees of
P10,000.00.
(3) Costs against the accused.
IN CRIMINAL CASE NO. U-9044
The accused is ACQUITTED of the crime of
ILLEGAL POSSESSION OF FIREARM.
SO ORDERED.
[15]

Hence, this appeal on the following grounds:
A.
THE TRIAL COURT GRAVELY
ERRED IN OVERLOOKING AND
DISREGARDING FACTS AND
CIRCUMSTANCES OF GREAT &
SIGNIFICANT WEIGHT AND
IMPORTANCE WHICH, IF
PROPERLY CONSIDERED, WOULD
HAVE RESULTED TO (sic) THE
ACQUITTAL OF THE ACCUSED-
APPELLANT.
B.
THE TRIAL COURT ERRED IN
DISREGARDING THE VERSION OF
THE DEFENSE WHICH IF TAKEN
TOGETHER, WOULD AFFECT THE
RESULT OF THE CASE IN FAVOR
OF THE ACCUSED-APPELLANT.
C.
THE TRIAL COURT ERRED IN NOT
ACQUITTING ACCUSED-
APPELLANT ON GROUNDS OF
REASONABLE DOUBT.
[16]

Accused-appellants self-defense theory is
unavailing. In alleging that the killing arose from
an impulse to defend oneself, the onus
probandi rests upon accused-appellant to prove
by clear and convincing evidence the following
elements: (a) that there was unlawful aggression
on the part of the victim; (b) that there was
reasonable necessity for the means employed to
prevent or repel it; and, (c) that there was lack of
sufficient provocation on the part of the
defendant.
[17]

In the case at bar, other than the self-
serving testimony of accused-appellant, there is
absolutely no evidence on record that would
show that Glicerio attacked him. Likewise, the
Court is totally unconvinced that the firing upon
Flordeliza was accidental. Indeed, the trial court,
which had the unparalleled opportunity to
observe the demeanor of the witnesses as they
testify,
[18]
correctly sustained the version
presented by the prosecution. We extensively
reviewed the testimony of the prosecution
witnesses and found their declarations to be
materially corroborated, consistent and
credible. It is hard to believe that the prosecution
eyewitness, a disinterested party who was not
shown to have been moved by improper motive,
would perjure herself and falsely implicate
accused-appellant in the present case.
[19]

Moreover, it appears that no powder
tattooing or smudging were noted on the
entrance wound sustained by Glicerio. This
indicates that the gun must have been fired from
a distance of more than two feet. As the
distance of the muzzle of the firearm increases,
the burning, powder tattooing and smudging
gradually diminish until (the same) disappear at a
distance beyond twenty-four inches.
[20]
Verily,
this belies the claim of the defense that the gun
went off at close range, and conversely, bolsters
the version of the prosecution that Glicerio was
shot at a distance of no less than two meters.
Likewise, the improbabilities pointed out by
accused-appellant are too trivial to merit
consideration. Certainly, it was not impossible
for accused-appellant to have missed the shot
when he fired upon Flordeliza at a distance of
five meters. As correctly argued by the Solicitor
General, five meters is not too near to miss a
shot, especially for accused-appellant who was
not shown to be a trained
marksman. Furthermore, the prosecution
witnesses failure to boldly confront accused-
appellant during and immediately after the
shooting incident is in perfect conformity with
human reaction and experience. Considering the
terror and violence stirred up by the situation, it is
understandable for one to seek cover rather than
to expose ones self to danger.
Finally, the attempt to discredit the
eyewitness testimony of Lynette De Leon on the
point of entry of the bullet must also fail. Contrary
to the claim of accused-appellant, there is no
inconsistency between the testimony of the
prosecution eyewitness and the medical finding
which shows that Glicerio was hit on the right
side of the neck. De Leon never testified that
accused-appellant aimed his gun in front of
Glicerio, or directly fronting Glicerios neck, or
that Glicerio was hit on the front portion of the
neck. Her testimony was that Glicerio was shot
on the neck, but she was not certain as to what
part of the neck exactly was hit.
[21]
Hence, the
precise point of entry of the bullet as testified to
by the doctor who examined the victim does not
in any way diminish the probative value of De
Leons testimony.
In Criminal Case No. U-5638, the trial court
was correct in convicting accused-appellant of
attempted murder. The testimony of Flordeliza
that accused-appellant deliberately fired the gun
at her was reinforced by the corroborative
declaration of prosecution witness De Leon who
stated that the shot was intended to kill
Flordeliza. Since accused-appellant already
commenced the criminal act by overt acts but
failed to perform all acts of execution as to
produce the felony by reason of some cause
other than his own desistance, the crime
committed is an attempted felony.
[22]
Accused-
appellant already commenced his attack with a
manifest intent to kill by shooting Flordeliza, but
failed to perform all the acts of execution by
reason of causes independent of his will, that is,
poor aim and the intervention of Glicerio. So
also, accused-appellants attack on Flordeliza,
who was then unsuspectingly tending their sari-
sari store, was sudden and done without any
provocation, thus giving her no chance to defend
herself. This circumstance constitutes
treachery
[23]
which qualifies the crime to
attempted murder.
Under Article 51 of the Revised Penal Code,
the penalty to be imposed upon the principal of
an attempted crime shall be lower by two
degrees than that prescribed for the
consummated felony. Prior to its amendment by
Republic Act No. 7659, Article 248 provided that
the crime of murder shall be punished
by reclusion temporal in its maximum period to
death. In accordance with Article 61(3), the
penalty two degrees lower would be prision
correccional maximum to prision mayor medium.
Since there is no modifying circumstance, the
medium period of the penalty, which is prision
mayor minimum, should be imposed as the
maximum penalty. Under the Indeterminate
Sentence Law, accused-appellant is entitled to a
minimum penalty within the range of arresto
mayor in its maximum period to prision
correccional in its medium period, the penalty
next lower than the penalty for attempted
murder.
[24]

The award of P5,000.00 by way of indemnity
to Flordeliza Sampilo in the attempted murder
case should be deleted for lack of basis.
In Criminal Case No. U-5639, the trial court
correctly appreciated the qualifying circumstance
of treachery. There is treachery when the
offender commits any of the crimes against
persons, employing means, methods, or forms in
the execution thereof which tend to directly and
specially insure the execution of the crime,
without risk to himself arising from the defense
which the offended party might make. The
essence of treachery is the sudden, unexpected,
on the person of the victim, without the slightest
provocation on the part of the latter.
[25]
In the
present case, Glicerio was utterly defenseless
when he was shot by accused-appellant. He was
raising his hands in an act of surrender and
repeatedly informing accused-appellant that he
will not fight. In shooting Glicerio, accused-
appellant therefore deliberately and consciously
took liberty of the absence of any real chance on
the part of Glicerio to defend himself. Hence,
treachery which qualifies the killing of the victim
to murder should be appreciated against
accused-appellant.
The penalty for murder at the time of its
commission was reclusion temporal maximum to
death.
[26]
There being three distinct penalties,
each one shall form a period.
[27]
Since no
aggravating or mitigating circumstance was
proved in this case, the penalty shall be imposed
in its medium period.
[28]
Thus, the trial court was
correct in sentencing accused-appellant to suffer
the penalty of reclusion perpetua.
Anent accused-appellants civil liability for
the crime of murder, the amount of P58,500.00
as actual damages awarded by the trial court
should be deleted for failure of the prosecution to
produce receipts in support thereof. However, in
lieu thereof, temperate damages under Article
2224 of the Civil Code may be recovered, as it
has been shown that the deceaseds family
suffered some pecuniary loss but the amount
thereof cannot be proved with certainty. For this
reason, an award of P15,000.00 by way of
temperate damages should suffice.
[29]
In line with
recent jurisprudence, the heirs of the deceased
should be awarded P50,000.00 as civil indemnity
and another P50,000.00 as moral
damages.
[30]
The exemplary damages and
attorneys fees awarded by the
court a quo should be deleted for lack of basis.
WHEREFORE, in view of all the foregoing,
the Decision of the Regional Trial Court of
Urdaneta, Pangasinan, Branch 47, in Criminal
Case No. U-5638, finding accused-appellant
guilty beyond reasonable doubt of Attempted
Murder and Criminal Case No. U-5639, finding
accused-appellant guilty beyond reasonable
doubt of Murder, is AFFIRMED with the following
MODIFICATIONS:
1) In Criminal Case No. U-5638, accused-
appellant Jesus Sumibcay y Repollo is
sentenced to suffer an indeterminate penalty of
four (4) years and two (2) months
of prision correccional, as minimum, to eight
(8) years of prision mayor, as maximum.
2) In Criminal Case No. U-5639, accused-
appellant is sentenced to suffer the penalty
of reclusion perpetua; and to pay the heirs of the
deceased the amounts of P15,000.00 as
temperate damages, P50,000.00 as civil
indemnity and another P50,000.00 by way of
moral damages.
SO ORDERED.