SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
123070
April 14, 2004
-versus-
CASIANO BUNTAG,
ALIAS
“CIANO”
AND DIEGO BONGO,
Appellants.
chanroblesvirtualawlibrary
D E C I S I O N
CALLEJO,
SR., J.:
This is an appeal
from the Decision[1]
of the Regional Trial Court of Tagbilaran City, Branch 3, in Criminal
Case
No. 7729, convicting the appellants Casiano Buntag alias “Ciano” and
Diego
Bongo of murder, sentencing each of them to reclusion perpetua, and
directing
them to jointly indemnify the heirs of the victim Berno Georg Otte the
sum of P50,000 as moral damages.chanrobles virtuallaw libraryred
The Indictment
The appellants were
charged with murder in an Information, the accusatory portion of which
reads:
That on or about the
9th day of February, 1992, in the municipality of Panglao, province of
Bohol, Philippines, and within the jurisdiction of this Honorable
Court,
the above-named accused, with intent to kill and without any
justifiable
cause, conspiring, confederating and mutually helping each other, with
treachery by the suddenness and unexpectedness of the acts, the victim
who was unarmed being then unaware thereof, did then and there
willfully,
unlawfully and feloniously attack, assault and stab with the use of a
bladed
instrument one Berno Georg Otte (a German national), hitting and
injuring
the latter on his chest, thereby causing his immediate death; to the
damage
and prejudice of the heirs of the victim in the amount to be proved
during
the trial.chanrobles virtuallaw libraryred
Acts committed contrary
to the provisions of Art. 248 in relation to Art. 14 all of the Revised
Penal Code as amended.[2]
The Case for the
Prosecution
Before February 8, 1992,
Berno Georg Otte,[3]
a German national and a tourist, checked in at the Alona Ville Beach
Resort
located in Panglao, Bohol. The resort manager, Herma Clarabal
Bonga,[4]
assigned Otte to Room No. 9[5]
and gave the latter his room key.cralaw:red
On February 8, 1992,
Otte took his dinner at the resort’s restaurant. Bonga talked to
him regarding the disco which was about to unfold that night in lower
Tawala
near the Catibo Chapel.[6]
At about 10:00 p.m.,
Bonga went to the disco party where she saw Otte seated at one of the
tables.[7]
She noticed that he had some companions whom she failed to recognize.[8]
Isidro A. Mihangos,
a 19-year-old student, and Benigno “Ninoy” Guigue were also at the
disco.
At around 2:00 a.m. of February 9, 1992, Mihangos and Guigue decided to
call it a night and walked home, with their respective bicycles at
their
sides.[9]
At the crossing to the Alona Beach, they saw a man lying on the road
but
did not recognize him. They walked past the prostrate man.
When they were about twenty-five meters[10]
away from the body by the road, they met Casiano Buntag and Diego
Bongo,
their barriomates.[11]
Suddenly, Buntag and Bongo jointly and simultaneously lunged at
them.
Afraid for their lives, Mihangos and Guigue fled and sought refuge in
the
house of Guigue’s uncle, Aquilino Bongo.[12]
In the process, they left their bicycles behind. Aquilino Bongo
then
accompanied Mihangos and Guigue to where they left their bicycles.
Mihangos
and Guigue retrieved their bicycles, but Buntag and Bongo were no
longer
there.chanrobles virtuallaw libraryred
At around 5:30 a.m.
of February 9, 1992, the police station of Panglao, Bohol, received a
report
by radio call about a man, believed to be dead, lying at the side of
the
crossroad near the Alona Beach.[13]
PO1 Yolando E. Hormachuelos, together with PO1 Mauro Sumaylo and PO1
Dominie
Ragusta,[14]
proceeded to the crime scene. They were accompanied by the
Municipal
Health Officer, Dr. Julita L. Cogo, who confirmed that the man died due
to a stab wound.[15]
The policemen found a hunting knife about one meter away from the body.[16]
Constancio Geoivencal took pictures of the cadaver. Hormachuelos
took custody of the knife.[17]
In the course of their
investigation, the policemen learned that Mihangos and Guigue had seen
the dead body by the road. Hormachuelos fetched Mihangos and
Guigue
from their houses and brought them to the road where the body of Otte
was
found. Mihangos and Guigue narrated how they found the body at
around
2:00 a.m. that day, as well as their encounter with Bongo and Buntag.cralaw:red
At about 1:00 p.m. that
day, Hormachuelos took appellant Bongo to the police station and
investigated
him without the assistance of counsel. Bongo admitted that he
took
Otte’s key to Room No. 9 and hid it near their house. He then
drew
a sketch showing the place where he hid the key, at the back of their
house.
Bongo also admitted that he was with appellant Casiano Buntag.
The
policemen went to Bongo’s house and recovered the key to Otte’s room as
indicated by Bongo in his sketch.cralaw:red
At 2:00 p.m., Guigue
arrived at the police station and gave his statement to Hormachuelos.[18]
At 3:00 p.m., Mihangos gave his statement to SPO1 Proculo Bonao.[19]
Hormachuelos then took custody of Casiano Buntag and brought him to the
police station where he was asked about his involvement in the killing
of Otte without the assistance of counsel. However, Buntag opted
to keep silent. When apprised that Diego Bongo had implicated
him,
Buntag, this time with the assistance of his counsel, Atty. Nerio G.
Zamora,
gave a statement on February 13, 1992 to a police investigator.
He
stated that at 1:00 a.m. on February 9, 1992, he was walking back home
from the disco place where he caught up with Diego Bongo and Otte at
the
crossing of Alona Beach. He saw Bongo poke a knife at Otte.
Bongo then ordered him to box Otte but he refused, and moved back about
three meters. Bongo himself then boxed Otte three times on the
face.
When Otte fell to the ground, Bongo stabbed him on the chest.
Buntag
also stated that he then ran back home, but Bongo followed him and
cautioned
him not to reveal the incident to anybody or else he would be
implicated.[20]
Buntag subscribed and swore to the truth of his statement on February
21,
1992 before Judge Antonio Sarce of the Municipal Circuit Trial Court.chanrobles virtuallaw libraryred
In the meantime, Municipal
Health Officer Dr. Julita Lood-Cogo performed an autopsy on the cadaver
of Otte and submitted her Post-Mortem Report which contained the
following
findings:
Stab wound, anterior
chest, right, at the level of the 4th rib, approx. 2 cms. x 1 cm. in
size,
with a depth of approx. 12 cms., directed upwards and medially, with a
complete fracture of the 4th rib, right, involving a portion of the
right
lung and base of the heart.cralaw:red
Cause of death:
CARDIORESPIRATORY ARREST DUE TO HEMORRHAGE, SECONDARY
TO STAB WOUND,
ANTERIOR
CHEST, RIGHT.[21]
On March 7, 1992, a
criminal complaint for murder was filed against appellants Bongo and
Buntag
with the Municipal Circuit Trial Court. Attached to the records
was
Buntag’s sworn statement dated February 21, 1992. Only appellant
Bongo submitted his counter-affidavit on February 27, 1992, subscribed
and sworn to before Judge Antonio Sarce,[22]
where he confirmed (a) Buntag’s account in his sworn statement before
Judge
Sarce that they were with Otte at 1:00 a.m. on February 9, 1992 at the
crossing towards Alona Beach Resort, and (b) that he was armed with a
hunting
knife. He further stated therein that while at the crossing,
Buntag
and Otte, who were both drunk, had an altercation and that he tried to
pacify them but in the process, Buntag pulled out his (Bongo’s) hunting
knife from his waist and stabbed Otte with it.[23]
After the requisite
preliminary investigation, the MCTC issued a resolution finding
probable
cause against the appellants for murder and issued warrants for their
arrest.
The court found Buntag’s sworn statement and Bongo’s counter-affidavit
self-serving.cralaw:red
On June 4, 1992, the
day of the appellant’s arraignment in the Regional Trial Court,
appellant
Buntag, through counsel, Atty. Nerio G. Zamora, filed a “Motion to
Discharge
(him) to be a Witness for the Prosecution,” alleging inter alia:
1) That there is
absolute
necessity for the testimony of said accused whose discharge is
requested;
2) That there is no
other
direct evidence available for the proper prosecution of the offense
committed,
except the testimony of said accused, as can be shown by the affidavit
of said accused in relation to the affidavits or sworn statements
of Ponciano Horcerada, Isidro Mihangos, Benigno Guigue, Alfredo
Guioguio,
and PO1 Yolando [E.] Hormachuelos;chanrobles virtuallaw libraryred
3) That the testimony
of
herein accused can be substantially corroborated in its material points;
4) That the said
accused
does not appear to be the most guilty; and
5) That the said
accused
has not at any time been convicted of any offense involving moral
turpitude;
6) That herein
accused-movant
hereby expresses his consent to be a witness for the government.[24]
However, the prosecution
opposed the motion on the ground that both accused were equally
guilty.
On June 8, 1992, the court issued an Order denying the motion, and the
appellants, assisted by their respective counsels, entered pleas of not
guilty.[25]
During the trial, the
prosecution presented Judge Antonio G. Sarce who testified that he
conducted
the preliminary examination of the case and identified both Buntag’s
sworn
statement and Bongo’s counter-affidavit as subscribed and sworn to
before
him (Judge Sarce) in his chambers.cralaw:red
After presenting all
its witnesses, the prosecution offered in evidence the hunting knife,[26]
the key to room no. 9 of the beach resort,[27]
the sworn statement of Buntag,[28]
and Bongo’s counter-affidavit[29]
to prove that both appellants conspired to kill the victim and that
they
in fact killed the victim, and as part of the testimony of Judge
Sarce.
Both appellants objected to the admission of the said sworn statements
and counter-affidavit solely on the ground that the statements executed
by one accused was hearsay as to the other accused.[30]
By way of rejoinder, the prosecution alleged as follows:
1.
That exhibits A, B,
C, D, E and all its submarkings are all relevant, pertinent and
material
evidence against the accused in the above-entitled case, therefore,
admissible
in evidence;
2.
That exhibits F and
all its submarkings are not hearsay and do not violate the res inter
alios
acta rule because they are principally offered against accused Casiano
Buntag, the affiant. The sworn statement of Casiano Buntag is
offered
mainly as admission of said accused Casiano Buntag;
3.
That exhibits G and
all its submarkings are not hearsay and do not violate the res inter
alios
acta rule because they are principally offered against accused Diego
Bongo,
the affiant. The counter-affidavit of Diego Bongo is offered
mainly
as admission of said accused Diego Bongo.chanrobles virtuallaw libraryred
WHEREFORE, it is most
respectfully prayed of this Honorable Court to admit in evidence all
the
prosecution’s exhibits formally offered, for the purpose for which they
are being offered.[31]
The court admitted the
documentary and object evidence of the prosecution. The
appellants
opted not to adduce any evidence on their behalf. Instead, they
filed,
without leave of court, a “Motion to Acquit.” On June 7, 1993,
the
court issued an Order denying the motion.cralaw:red
On August 14, 1995,
the trial court rendered judgment finding both the appellants guilty of
the crime charged. The decretal portion of the decision of the
trial
court reads:
FROM THE FOREGOING PREMISES,
this Court renders judgment finding the two (2) accused Casiano Buntag,
alias Ciano, and Diego Bongo guilty beyond reasonable doubt of the
crime
of MURDER, an act committed contrary to the provisions of Article 248,
in relation to Article 14 of the Revised Penal Code, as amended, and
does
hereby sentences each one of them to the penalty of Reclusion Perpetua,
with all the accusatory penalties imposed by law.cralaw:red
There being no evidence
disclosed as to the civil liability, this Court, therefore, limits in
providing
that the accused shall pay jointly the heirs of the deceased Berno
Georg
Otte the amount of Fifty Thousand Pesos (P50,000.00), by way of moral
damages,
but without subsidiary imprisonment in case of insolvency.cralaw:red
Without pronouncement
as to costs.
SO ORDERED.[32]
The trial court relied,
inter alia, on the sworn statement of Buntag dated February 21, 1992[33]
and the counter-affidavit of Bongo[34]
in convicting them of the crime charged. Both the appellants
appealed
the decision.cralaw:red
Although the appellants
enumerated separate issues in their briefs, the same may be synthesized
into three issues, namely: (a) whether or not the prosecution proved
beyond
reasonable doubt that they conspired to kill the victim Otte and that
they,
in fact, killed him; (b) whether or not the appellants are guilty of
murder;
and, (c) whether or not the appellants are liable for moral damages to
the heirs of the victim. Appellant Bongo’s contention that he was
deprived of his right to due process on his claim that the transcripts
of the respective testimonies of Dr. Julita Cogo, SPO1 Bonao and resort
manager Bonga were not transmitted to this Court is belied by the
records.
In a Resolution dated September 11, 2000, the Court declared that,
based
on the records, the transcripts of stenographic notes in this case were
already complete.[35]chanrobles virtuallaw libraryred
The appellants contend
that the prosecution failed to adduce direct or circumstantial evidence
to prove that they conspired to kill the victim, and that they, in
fact,
killed him. They argue that although the prosecution adduced
circumstantial
evidence consisting of the extrajudicial sworn statement of appellant
Buntag
and the counter-affidavit of appellant Bongo, such evidence is utterly
insufficient to prove their guilt beyond reasonable doubt.cralaw:red
Furthermore, according
to the appellants, the admissions made by appellant Buntag in his sworn
statement are binding on him only. Being prejudicial to appellant
Bongo, such admissions are not inadmissible against the latter unless
repeated
in open court by appellant Buntag, thus, affording appellant Bongo the
right to cross-examination. Likewise, the admissions of appellant
Bongo in his sworn statement are inadmissible against appellant Buntag,
unless the former repeated his admissions during the trial, affording
the
latter an opportunity to cross-examine the said appellant. The
appellants
further aver that since they opted not to testify on their respective
statements,
there was no opportunity for cross-examination. Consequently, the
admissions made by one appellant in his sworn statement are hearsay
evidence
against the other appellant, and vice versa. In fine, the
appellants
contend that the trial court should have acquitted them of the crime
charged.cralaw:red
We agree with
the appellants that the prosecution failed to adduce direct evidence
that
they conspired to kill Otte and that they, in fact, stabbed and killed
the victim. However, we find and so hold, after an incisive
review
of the records, that the prosecution adduced sufficient circumstantial
evidence to prove the guilt of the appellants beyond reasonable doubt.cralaw:red
Article 8 of the Revised
Penal Code provides that there is conspiracy when two or more persons
agree
to commit a crime and decide to commit it. Direct proof is not
essential
to establish conspiracy, and may be inferred from the collective acts
of
the accused before, during and after the commission of the crime.[36]
Conspiracy can be presumed from and proven by acts of the accused
themselves
when the said acts point to a joint purpose and design, concerted
action
and community of interests.[37]
It is not necessary to show that all the conspirators actually hit and
killed the victim. Conspiracy renders all the conspirators as
co-principals
regardless of the extent and character of their participation because
in
contemplation of law, the act of one conspirator is the act of all.[38]
The crime charged may
also be proved by circumstantial evidence, sometimes referred to as
indirect
or presumptive evidence. Circumstantial evidence is sufficient on
which to anchor a judgment of conviction if the following requisites
are
established: (a) there is more than one circumstance; (b) the facts
from
which the inferences are derived have been established; and, (c) the
combination
of all the circumstances is such as to warrant a finding of guilt
beyond
reasonable doubt.[39]chanrobles virtuallaw libraryred
In People v. Delim,[40]
we held, thus:
The prosecution is burdened
to prove the essential events which constitute a compact mass of
circumstantial
evidence, and the proof of each being confirmed by the proof of the
other,
and all without exception leading by mutual support to but one
conclusion:
the guilt of the accused for the offense charged. For
circumstantial
evidence to be sufficient to support a conviction, all the
circumstances
must be consistent with each other, consistent with the hypothesis that
accused is guilty and at the same time inconsistent with the hypothesis
that he is innocent, and with every other rational hypothesis except
that
of guilt. If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of the accused beyond reasonable doubt, the
burden of evidence shifts to the accused to controvert the evidence of
the prosecution.[41]
In convicting the appellants
of the crime charged, the trial court relied not only on the
counter-affidavit
of appellant Bongo[42]
and appellant Buntag’s sworn statement,[43]
but also on the other evidence on record, namely, the knife used in
killing
the victim,[44]
the key to Otte’s room,[45]
and the collective testimonies of the other witnesses of the
prosecution.cralaw:red
The general rule is
that the extrajudicial confession or admission of one accused is
admissible
only against the said accused but is inadmissible against the other
accused.[46]
The same rule applies if the extrajudicial confession is made by one
accused
after the conspiracy has ceased. However, if the
declarant/admitter
repeats in court his extrajudicial confession during trial and the
other
accused is accorded the opportunity to cross-examine the admitter, such
confession or admission is admissible against both accused.[47]
The erstwhile extrajudicial confession or admission when repeated
during
the trial is transposed into judicial admissions.cralaw:red
In criminal cases, an
admission is something less than a confession. It is but a
statement
of facts by the accused, direct or implied, which do not directly
involve
an acknowledgment of his guilt or of his criminal intent to commit the
offense with which he is bound, against his interests, of the evidence
or truths charged.[48]
It is an acknowledgment of some facts or circumstances which, in
itself,
is insufficient to authorize a conviction and which tends only to
establish
the ultimate facts of guilt.[49]
A confession, on the other hand, is an acknowledgment, in express
terms,
of his guilt of the crime charged.[50]chanrobles virtuallaw libraryred
In this case, appellant
Buntag made extrajudicial admissions against his interest in his sworn
statement, and not a confession. So did appellant Bongo in his
counter-affidavit.
Such admissions in the form of affidavits, made in the Municipal Trial
Court in the course of its preliminary investigation, are high quality
evidence.[51]
MCTC Judge Antonio Sarce testified on the said sworn statement and
counter-affidavit
and was cross-examined.[52]
Moreover, some of the extrajudicial inculpatory admissions of one
appellant
are identical with some of the extrajudicial inculpatory admissions of
the other, and vice versa. This corroborates and confirms their
veracity.
Such admissions, made without collusion, are akin to interlocking
extrajudicial
confessions. They are admissible as circumstantial evidence
against
the other appellant implicated therein to show the probability of his
participation
in the commission of the crime and as corroborative evidence against
him.[53]
The Court rejects the appellants’ contention that they were deprived of
their right to cross-examine the other on the latter’s admissions
against
the other. Through their common counsel, they opted not to
testify
and be cross-examined on their respective statements by the
prosecution.
They opted to file a motion to acquit. Besides, they had
opportunity
to cross-examine Judge Sarce before whom they swore to the truthfulness
of their statements.[54]
In this case, the prosecution
adduced the following circumstantial evidence which constitutes proof
beyond
reasonable doubt that the appellants, indeed, conspired to kill and did
kill the victim:
1. Appellant Buntag
admitted, in his sworn statement,[55]
that, at about 1:00 a.m. on February 9, 1992, he was in the company of
appellant Bongo and the victim Otte at the crossing of Alona Beach, and
that appellant Bongo was armed with a hunting knife. Appellant
Buntag
identified the victim through the latter’s picture, as well as the
hunting
knife used in the killing.[56]
Appellant Bongo, in his counter-affidavit, confirmed the truth of
appellant
Buntag’s admissions and also admitted that on the said date, time and
place,
he was with appellant Buntag and the victim, and that he was armed with
a hunting knife which was tucked on his waist.cralaw:red
2. The appellants
admitted in their respective statements that on the said occasion, Otte
died from a stab wound caused by a hunting knife.chanrobles virtuallaw libraryred
3. Appellant Bongo
admitted in his counter-affidavit that he took the key to the victim’s
room and hid it near their house where the policemen found it.cralaw:red
4. While both
appellants were within the periphery of the situs criminis, Mihangos
and
Guigue sauntered by with their bicycles at their sides. Suddenly,
the appellants jointly and simultaneously lunged at them, causing
Mihangos
and Guigue to believe that their lives were in peril, impelling them to
run for their lives and seek sanctuary in the house of Guigue’s uncle,
Aquilino Bongo. By the time Mihangos and Guigue returned to the
situs
criminis to retrieve their bicycles, the appellants had already left.cralaw:red
5. In his sworn statement,
appellant Buntag admitted that after the victim was stabbed, he and
appellant
Bongo fled from the situs criminis. This was corroborated by the
testimony of Mihangos. The presence of both appellants at the
situs
criminis and their flight from the scene are strong indicia of their
participation
in the commission of the crime and their complicity therein.[57]
Appellant Bongo opted not to testify or adduce evidence to controvert
the
testimony of Mihangos and the admissions of the appellant prejudicial
to
him.cralaw:red
6. The hunting
knife of appellant Bongo which was used to kill the victim was left at
the scene of the crime where the policemen recovered it shortly
thereafter.cralaw:red
7. The appellants
admitted in their respective sworn statements that the victim was
stabbed
once with a hunting knife. These admissions were corroborated by
Dr. Julita Cogo’s finding that the victim was stabbed once on the
anterior
chest area.[58]
The doctor testified that the stab wound could have been caused by a
sharp-edged
weapon.[59]
8. Neither of
the appellants brought the victim to the hospital for immediate medical
attendance and operation.cralaw:red
9. Although the
appellants pointed to the other as the assailant in their respective
statements,
neither of them reported the stabbing to the police authorities and
claimed
that the other killed the victim.chanrobles virtuallaw libraryred
10. Neither of the appellants
took the witness stand to deny any involvement in the killing of the
victim.
The evidence of the prosecution, thus, stands unrebutted.cralaw:red
The appellants cannot
rely on the exculpatory portions of their respective statements as
basis
for their acquittal of the crime charged. In the case of
appellant
Buntag, he avers in his sworn statement that he was ordered by
appellant
Bongo to box the victim and when he refused, appellant Bongo himself
boxed
and stabbed the victim with the hunting knife. When appellant
Buntag
fled from the scene and went back home, appellant Bongo followed and
warned
him not to divulge the incident so that he would not be
implicated.
For his part, appellant Bongo turned the tables on appellant Buntag and
claimed in his counter-affidavit that the latter snatched the hunting
knife
from his waist and stabbed the victim in the heat of their
altercation.
The stabbing was so sudden, he insists, that he was unable to stop
appellant
Buntag from stabbing the victim.cralaw:red
We are not persuaded
by the claims of the appellants for the following reasons:
First. Contrary
to the claim of appellant Buntag that appellant Bongo boxed the victim,
the necropsy report of Dr. Cogo failed to show that the victim’s body
sustained
hematoma, bruises or contusions. The findings of the doctor must
prevail as against the bare statements of the appellants.cralaw:red
Second. Appellant
Buntag admitted in his sworn statement that before he and appellant
Bongo
could leave the situs criminis after the victim was stabbed, Mihangos
and
Guigue arrived. The appellants lunged jointly and simultaneously
at the two teenagers which so terrified the latter that they fled for
their
lives. If, as appellant Buntag claims, he had nothing to do with
the stabbing of the victim, he should have sought the help of the
teenagers,
brought the victim to the hospital and reported to the police
authorities
that it was appellant Bongo who stabbed the victim. Appellant
Buntag
failed to do so. Neither did appellant Bongo seek the help of the
two teenagers and report the stabbing to the police authorities.
Both appellants’ unexplained omission is another indication of their
conspiracy
and complicity in the crime charged.chanrobles virtuallaw libraryred
Third. Appellant
Bongo took the key from the body of the victim and hid it near their
house
where the policemen found it. The appellant has not explained why
he had the key to the victim’s room and hid it near their house.
He owned the hunting knife used in stabbing the victim. He knew
or
should have known that sooner or later, the policemen would trace the
knife
to him; and yet, appellant Bongo failed to report the incident to the
police
authorities and surrender the knife to them.cralaw:red
Fourth. Appellant
Bongo denied involvement in the killing and pointed to appellant Buntag
as the assailant only after the latter had executed his own sworn
statement
pointing to appellant Bongo as the victim’s assailant. We are
convinced
that appellant Bongo’s denial of any involvement in the killing is but
a belated afterthought to escape criminal liability for the victim’s
death.cralaw:red
The trial court convicted
the appellants of murder under Article 248 of the Revised Penal Code,
as
amended, and sentenced each of them to reclusion perpetua. We
note,
however, that the trial court, in its amended decision, made no finding
on any attendant circumstance which would qualify the killing to
murder.
It bears stressing that under the Rules of Criminal Procedure, any
qualifying
circumstance attendant to the commission of a crime must be alleged in
the Information and proved by the prosecution, conformably to the
constitutional
right of an accused to be informed of the nature of the charges against
him.cralaw:red
In this case, the Information
alleged that treachery was attendant in the commission of the
crime.
The prosecution was burdened to prove beyond reasonable doubt, not only
the crime itself, but also the qualifying circumstance of alevosia.[60]
Treachery cannot be based on speculations and surmises. In order
that treachery may be appreciated as a qualifying circumstance under
Article
14 of the Revised Penal Code, the prosecution is burdened to prove that
(a) the malefactor employed means, method or manner of execution
affording
the person attacked no opportunity to defend himself or to retaliate
and,
(b) the means, method or manner of execution was deliberately or
consciously
adopted by the offender. In this case, there was no eyewitness to the
crime.cralaw:red
On the other hand, appellant
Buntag, in his sworn statement, claimed that before the victim was
stabbed,
appellant Bongo and the victim had an altercation; appellant Bongo, in
his counter-affidavit, stated that it was appellant Buntag and the
victim
who had an altercation before the victim was killed. There is no
evidence that the appellants deliberately or consciously adopted a
method
or means of execution to insure the death of the victim.chanrobles virtuallaw libraryred
In fine then, the appellants
are guilty only of homicide, punishable under Article 249 of the
Revised
Penal Code with reclusion temporal in its full range, which is twelve
(12)
years and one (1) day to twenty (20) years. There being no
modifying
circumstance attendant to the crime, the maximum of the indeterminate
penalty
should be in its medium period.cralaw:red
The trial court awarded
moral damages to the heirs of the victim, although the prosecution
failed
to present any heir of the victim as witness. The trial court,
likewise,
failed to award civil indemnity ex delicto to the heirs of the
victim.
The decision of the trial court shall, thus, be modified accordingly.chanrobles virtuallaw libraryred
IN LIGHT OF ALL THE
FOREGOING, the Decision of the Regional Trial Court of Tagbilaran City,
Branch 3, in Criminal Case No. 7729 is AFFIRMED WITH
MODIFICATIONS.
Appellants Casiano Buntag alias “Ciano” and Diego Bongo are found
guilty,
as principals, of homicide under Article 249 of the Revised Penal
Code.
There being no modifying circumstances attendant to the crime, each of
the appellants are sentenced to suffer an indeterminate penalty from
ten
(10) years of prision mayor, in its medium period, as minimum, to
sixteen
(16) years and one (1) day of reclusion temporal in its medium period,
as maximum. The award of moral damages is deleted. The said
appellants
are ordered to pay, jointly and severally, to the heirs of the victim
Berno
Georg Otte, P50,000 as civil indemnity, conformably to current
jurisprudence.[61]
Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman),
Quisumbing, Austria-Martinez, and Tinga, JJ., concur
____________________________
Endnotes:
[1]
Penned by Judge Pacito A. Yape.
[2]
Records, p. 38.chanrobles virtuallaw libraryred
[3]
Also referred to as “Otti” in some parts of the records of the case.
[4]
Records, p. 14.chanrobles virtuallaw libraryred
[5]
TSN, 7 October 1992, pp. 6-7.chanrobles virtuallaw libraryred
[6]
Id. at 5.chanrobles virtuallaw libraryred
[7]
Id. at 8-10.chanrobles virtuallaw libraryred
[8]
TSN, 20 October 1992, p. 2.
[9]
TSN, 6 October 1992, pp. 22-23.
[10]
Id. at 38-39.chanrobles virtuallaw libraryred
[11]
Id. at 25-27.
[12]
Id. at 29.chanrobles virtuallaw libraryred
[13]
Records, p. 13.
[14]
Id. at 13.chanrobles virtuallaw libraryred
[15]
TSN, 5 October 1992, p. 6.
[16]
Id. at 7.
[17]
Exhibit “D.”
[18]
Records, p. 7.
[19]
Id. at 8.
[20]
Exhibit “F.”
[21]
Exhibit “A.”
[22]
Exhibit “G.”
[23]
Ibid.chanrobles virtuallaw libraryred
[24]
Records, p. 47.
[25]
Id. at 49.chanrobles virtuallaw libraryred
[26]
Exhibit “D.”
[27]
Exhibit “E.”
[28]
Exhibit “F.”
[29]
Exhibit “G.”
[30]
Records, pp. 83-84.
[31]
Id. at 85.chanrobles virtuallaw libraryred
[32]
Id. at 168.
[33]
Exhibit “F.”
[34]
Exhibit “G.”
[35]
Rollo, p. 277.chanrobles virtuallaw libraryred
[36]
People v. Templa, 363 SCRA 291 (2001).
[37]
People v. Licayan, 363 SCRA 234 (2001).
[38]
People v. Sanchez, 313 SCRA 254 (1999).chanrobles virtuallaw libraryred
[39]
See Section 4, Rule 133 of the Revised Rules of Evidence.
[40]
G.R. No. 142773, January 28, 2003.chanrobles virtuallaw libraryred
[41]
Id. at 19-20.chanrobles virtuallaw libraryred
[42]
Exhibit “G.”
[43]
Exhibit “F.”
[44]
Exhibit “D.”
[45]
Exhibit “E.”chanrobles virtuallaw libraryred
[46]
Section 28, Rule 130 of the Revised Rules of Evidence provides:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
Sec. 28. Admission by third party. – The right of a party cannot
be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided; People v. Crispin, 327 SCRA 167 (2000).
[47]
See People v. Panida, 310 SCRA 66 (1999).chanrobles virtuallaw libraryred
[48]
Francisco, The Revised Rules of Court, Vol. VII, Part I, 1990 ed., pp.
302-303.
[49]
People v. Zuela, 323 SCRA 589 (2000).chanrobles virtuallaw libraryred
[50]
Ibid.chanrobles virtuallaw libraryred
[51]
Mercado v. Court of Appeals, 240 SCRA 616 (1995).
[52]
People v. Zuela, supra.chanrobles virtuallaw libraryred
[53]
People v. Lising, 285 SCRA 595 (1998).
[54]
People v. Zuela, supra.chanrobles virtuallaw libraryred
[55]
Exhibit “F.”chanrobles virtuallaw libraryred
[56]
Exhibit “D.”chanrobles virtuallaw libraryred
[57]
People v. Corre, Jr., 363 SCRA 165 (2001).
[58]
Exhibit “A.”chanrobles virtuallaw libraryred
[59]
TSN, 5 October 1992, p. 6.
[60]
People v. Orio, 330 SCRA 576 (2000).
[61]
People v. Delim, supra. |