SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
124058
December 10, 2003
-versus-
JESUS G. RETUBADO
ALIAS "JESSIE,"
Appellant.
D E C I S I O N
CALLEJO,
SR., J.:
This is an appeal
from the Decision[1]
of the Regional Trial Court, Toledo City, Branch 29, in Criminal Case
No.
TCS-2153 convicting the appellant Jesus G. Retubado of murder,
sentencing
him to reclusion perpetua, and directing him to indemnify the heirs of
the victim Emmanuel Cañon the sum of P50,000.00.
chanrobles virtuallaw libraryred
The appellant was
indicted
for murder in an Information, the accusatory portion of which reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
That on the
5th day of November, 1993 at 9:30 o'clock in the evening, more or less,
at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu,
Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused,
with deliberate intent to kill, by means of treachery, evident
premeditation
and taking advantage of superior strength, did then and there
willfully,
unlawfully and feloniously attack, assault and shoot Emmanuel
Cañon
with the use of unlicensed revolver of unknown caliber, thereby hitting
the latter on his forehead, resulting to the instantaneous death of the
said victim.chanrobles virtuallaw libraryred
CONTRARY TO
LAW.[2]
Shortly before November
5, 1993, someone played a joke on Edwin Retubado, the appellant's
younger
brother who was mentally ill. Someone inserted a lighted firecracker in
a cigarette pack and gave it to Edwin. He brought the cigarette home
and
placed it on the dining table as he was having dinner with his father.
Momentarily, the firecracker exploded. The suspect was Emmanuel
Cañon,
Jr., The Cañons and the appellant were neighbors. The matter was
brought to the attention of the barangay captain who conducted an
investigation.
It turned out that Emmanuel Cañon, Jr. was not the culprit. The
barangay captain considered the matter closed. The appellant, however,
was bent on confronting Emmanuel Cañon, Jr.chanrobles virtuallaw libraryred
On November 5, 1993,
at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab
driver
called it a day and decided to go home after a day's work. He drove his
pedicab and stopped at the junction of Rizal and Gallardo Streets, at
the
poblacion of Tuburan. The appellant, who was conversing with Marcial
Luciño
saw him. "Noy, why is [it] your son did something to my brother?"
Emmanuel
ignored the appellant. The appellant was incensed and ran after
Emmanuel.
He overtook Emmanuel, grabbed and pushed the pedicab which nearly fell
into a canal. Emmanuel again ignored the appellant and pedaled on until
he reached his house. His wife, Norberta Cañon was in the
balcony
of their house, above the porch waiting for him to arrive. Emmanuel,
Jr.,
meanwhile, was already asleep. Undeterred, the appellant continued
following
Emmanuel.chanrobles virtuallaw libraryred
Shortly after Emmanuel
had entered his house, the appellant arrived and tarried at the porch.
Emmanuel suddenly opened the door and demanded to know why he was being
followed. The appellant told Emmanuel that he just wanted to talk to
Emmanuel,
Jr., but Emmanuel told the appellant that his son was already asleep.
Norberta
went down from the balcony and placed her hand on her husband's
shoulder
to pacify him.chanrobles virtuallaw libraryred
The appellant forthwith
pulled out a handgun from under his T-shirt and shot Emmanuel on the
forehead.
The latter fell to the floor as the appellant walked away from the
scene.
Norberta shouted for help. The neighbors, her daughter, and her
son-in-law
arrived. They brought Emmanuel to the Tuburan District Hospital, but
the
victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal
Health
Officer, performed an autopsy on the cadaver of Emmanuel and prepared a
report thereon with the following findings:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Examination
in Detail:
On detailed
examination,
a gunshot wound was found at the left side of the forehead, measuring 1
cm. in diameter. At the skin surrounding this wound was found powder
burns
which measured 3 cms. in diameter as the skin had been blackened and
burned
by powder of the bullet. The underlying frontal bone was fractured and
depressed. The underlying meninges of the brain as well as the frontal
area of the brain was traumatized and injured. Blood and cerebrospinal
fluid were leaking from this wound. The edges of this bullet wound was
inverted thus this was the gunshot entry wound. The wound was found to
be circular in shape. The exit wound was found at the left parietal
bone
measuring 1.2 cm. in size or diameter for this wound communicated with
the entry wound of the left side of the forehead. The connection from
the
wound of entry to the exit wound measured 8 cms. The parietal bone was
fractured and was depressed and the parietal part of the brain and
meninges
was traumatized. Blood and cerebrospinal fluid as well as brain tissues
leaked out from this wound.chanrobles virtuallaw libraryred
Possible cause of
death:
1. Gunshot wound
at
the head (left side) with injury to brain and meninges.chanrobles virtuallaw libraryred
2. Hypovolemic shock
secondary to loss of blood (Severe loss of blood).chanrobles virtuallaw libraryred
(Sgd.) Ivar G.
Arellano
MUN. Health Officer[3]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Dr. Charity Patalinghug
and the victim's daughter Loreta C. Claro signed Emmanuel's Certificate
of Death.[4]
The appellant surrendered to the police authorities but failed to
surrender
the firearm he used to kill the victim. Forensic Officer Myrna P.
Areola
of the PNP Regional Office subjected the appellant to paraffin tests.
The
Chemical Analysis of the paraffin casts gave the following results:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
FINDINGS:chanrobles virtuallaw libraryred
x
x
x
x x
x
x x x
1. POSITIVE for
the
presence of gunpowder residue on his left hand cast.chanrobles virtuallaw libraryred
2. NEGATIVE for
the
presence of gunpowder residue on his right hand cast.[5]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Norberta also testified
on the expenses incurred by her family due to her husband's death. No
documentary
evidence was, however, offered to support the same. She declared that
she
felt sad and lonely as a result of her husband's death.chanrobles virtuallaw libraryred
The Case for the
Appellant
The appellant admitted
shooting the victim but claimed that he was merely performing a lawful
act with due care; hence, cannot be held criminally liable for the
victim's
death. He testified that when he insisted that Emmanuel wake up his
son,
Emmanuel went to his room and emerged therefrom holding a handgun with
his right hand. Emmanuel's trigger finger was outside the trigger
guard,
and he held the firearm with the muzzle facing downward. Fearing that
he
would be shot, the appellant took hold of Emmanuel's right hand with
his
left, and pulled the gun towards Emmanuel's stomach. The appellant
grabbed
Emmanuel's free hand with his right hand, and the old man almost fell
on
his knees to the ground. Emmanuel still resisted. The appellant pulled
the gun to the level of Emmanuel's forehead, and the gun suddenly went
off. The bullet hit Emmanuel's forehead. Norberta fled from the house.
For his part, the appellant rushed to his house to change clothes. He
placed
the gun on the dining table before entering his bedroom. When he went
back
to the dining room to get the gun, his younger sister, Enrica told him
that their brother Edwin had taken the gun. He found Edwin outside
their
house near the church, and the latter told the appellant that he threw
the gun into the sea. When the appellant asked his brother to show him
where he threw the gun, Edwin refused to do so.chanrobles virtuallaw libraryred
Marcial Luciño
corroborated the appellant's testimony. He testified that he was
talking
with the appellant at around 9:00 p.m. at the junction of Rizal and
Gallardo
streets when the victim Emmanuel passed by in his pedicab. When the
appellant
called the victim, the latter ignored the call, prompting the appellant
to chase the victim, and eventually push the pedicab into a canal.chanrobles virtuallaw libraryred
The appellant's father,
Iñigo Retubado, testified that on the evening of November 5,
1993,
he was in their house with Edwin, his son who was mentally-ill. It was
already late when the appellant arrived. The appellant was disheveled,
and laid down the gun he was carrying on the table. The appellant told
his father that he would surrender to the police because he had shot
somebody.[6]
The appellant thereafter went to his room to change clothes while
Iñigo
went to the comfort room to answer the call of nature. When he was
done,
he saw the appellant frantically looking for the gun. As Edwin was also
nowhere to be found, Iñigo concluded that Edwin might have taken
the gun with him. He also testified on Edwin's mental imbalance and on
the latter's confinement at the Psychiatric Department of the Don
Vicente
Sotto Memorial Medical Center in Cebu City sometime in 1991.[7]chanrobles virtuallaw libraryred
On November 6, 1993,
the appellant surrendered to the police authorities. Although he was
required
by the municipal trial court to file his counter-affidavit, the
appellant
refused to do so.chanrobles virtuallaw libraryred
After due proceedings,
the trial court rendered judgment in Criminal Case No. TCS-2153,
convicting
the appellant of murder, and sentencing him to reclusion perpetua. The
decretal portion of the decision reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
WHEREFORE,
in view of the foregoing, this Court finds accused GUILTY beyond
reasonable
doubt of the crime of Murder under Art. 248 R.P.C. and sentences the
accused
to the penalty of Reclusion Perpetua and to indemnify the heirs of the
deceased the sum of P50,000.00.
chanrobles virtuallaw libraryred
However, accused is
given full credit of his preventive imprisonment.chanrobles virtuallaw libraryred
SO ORDERED.[8]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
On appeal, the
appellant
assails the decision of the trial court contending that:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
I - First
Assignment
of Error
THE LOWER COURT
ERRED
IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT
WITHOUT
FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A
LAWFUL
ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING
HIM
JUST MERELY OF HOMICIDE INSTEAD OF MURDER.chanrobles virtuallaw libraryred
II - Second
Assignment
of Error
THE LOWER COURT
ERRED
IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT "B"
OF THE PROSECUTION — CHEMISTRY REPORT, PARAFFIN TEST — WHICH ARE
FAVORABLE
TO THE ACCUSED.chanrobles virtuallaw libraryred
III - Third
Assignment
of Error
THE LOWER COURT
ERRED
IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION
IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER.chanrobles virtuallaw libraryred
IV - Fourth
Assignment
of Error
THE LOWER COURT
ERRED
IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO
SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.[9]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The appellant asserts
that he was merely performing a lawful act of defending himself when he
grabbed the victim's hand which held the gun. The gun accidentally
fired
and the bullet hit the victim's forehead. The accident was not the
appellant's
fault. The appellant asserts that when he wrestled with the victim for
the possession of the gun, he was merely defending himself. He contends
that he had no intention of killing the victim, as he merely wanted to
talk to his son. If he had wanted to kill the victim, he could have
easily
done so when he met the latter for the first time that fateful night of
November 5, 1993. Moreover, the appellant submits, he did not commit
any
felony; hence, under paragraph 4 of Article 12 of the Revised Penal
Code,
he is not criminally liable for the death of the victim.[10]
In the alternative, the appellant asserts that he should be convicted
only
of the crime of homicide under Article 249 of the Revised Penal Code,
since
the qualifying circumstance of treachery is wanting. He and the victim
had a heated exchange of words before they grappled for the possession
of the gun. Such heated discussion had already forewarned the victim
and
placed him on guard; thus, treachery cannot be legally considered.chanrobles virtuallaw libraryred
The contention of the
appellant has no merit. Article 11, paragraph 4 of the Revised
Penal Code reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Article 11.
Justifying
circumstances. —chanrobles virtuallaw libraryred
x
x
x
x x
x
x x x
4) Any person who,
in
order to avoid an evil or injury, does an act which causes damage to
another
provided that the following requisites are present:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
First.
That
the evil sought to be avoided actually exists;chanrobles virtuallaw libraryred
Second. That the
injury
feared be greater than that done to avoid it;chanrobles virtuallaw libraryred
Third. That
there be
no other practical and less harmful means of preventing it.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The provision was taken
from Article 8, paragraph 7 of the Spanish Penal Code, which reads:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
ARTICULO 8.
7. El que para
evitar
un mal ejecuta un hecho que produzca dañ en la propiedad ajena,
siempre que concurran las circumstancias siguientes:
chanrobles virtuallaw libraryred
Primera. Realidad
del
mal que se trata de evitar.chanrobles virtuallaw libraryred
Segunda. Quesea
mayor
que el causado para evitarlo.chanrobles virtuallaw libraryred
Tercera. Que no
haya
otro medio practicable y menos perjudicial para impedirlo.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Article 11, paragraph
4 of the Revised
Penal Code is not an accurate translation of the Spanish Penal
Code.
The phrase "an injury" does not appear in the first paragraph in the
Spanish
Penal Code. Neither does the word "injury" appear in the second
subparagraph
of the Spanish Penal Code.chanrobles virtuallaw libraryred
The justification is
what is referred to in the Spanish Penal Code as el estado de
necessidad:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Es una
situation
de peligro, actual o immediato para bienes, juridicamente protegides
que
solo puede ser evitada mediante, la lesion de bienes, tambien
juridicamento
protegidos, pertenecientes a otra personas.[11]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The phrase "state of
necessity" is of German origin. Countries which have embraced the
classical
theory of criminal law, like Italy, do not use the phrase. The
justification
refers to a situation of grave peril (un mal), actual or imminent
(actual
o imminente). The word propiedad covers diverse juridical rights
(bienes
juridicos) such as right to life, honor, the integrity of one's body,
and
property (la vida, la integridad corporal, el pudor, el honor, bienes
patrimoniales)
belonging to another.[12]chanrobles virtuallaw libraryred
It is indispensable
that the state of necessity must not be brought about by the
intentional
provocation of the party invoking the same.[13]chanrobles virtuallaw libraryred
A number of legal scholars
in Europe are of the view that the act of the accused in a state of
necessity
is justifying circumstance; hence, lawful. Under Article 12, paragraph
4 of the Revised Penal Code, a "state of necessity" is a justifying
circumstance.
The accused does not commit a crime in legal contemplation; hence, is
not
criminally and civilly liable. Civil liability is borne by the
person/persons
benefited by the act of the accused. Crimes cannot exist unless the
will
concurs with the act, and when, says Blackstone, "a man intending to do
a lawful act, does that which is unlawful, the deed and the will act
separately"
and there is no conjunction between them which is necessary to
constitute
a crime.[14]
Others are of the view that such act is a cause for exclusion from
being
meted a penalty; still others view such act as a case of excluding the
accused from culpability.chanrobles virtuallaw libraryred
According to Groizard,
rights may be prejudiced by three general classes of acts, namely, (a)
malicious and intentional acts; (b) negligent or reckless acts; (c)
acts
which are neither malicious, imprudent nor negligent but nevertheless
cause
damages.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Nuestra
propiedad
puede ser perjudicada, puede sufrir detrimentos por tres clases de
hechos.
Por actos maliciosos, intencionales, encaminados directamente a
causarnos
daño; por actos que, sin llevar ese malicioso fin y por falta de
prudencia, por culpa o temeridad del que los ejecuta, den ese mismo
resultado,
y por actos que, sin concurrir en su ejecucion un proposito doloso, ni
culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.[15]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
The defense of a state
of necessity is a justifying circumstance under Article 12, paragraph 4
of the Revised
Penal Code. It is an affirmative defense that must be proved by the
accused with clear and convincing evidence. By admitting causing the
injuries
and killing the victim, the accused must rely on the strength of his
own
evidence and not on the weakness of the evidence of the prosecution
because
if such evidence is weak but the accused fails to prove his defense,
the
evidence of the prosecution can no longer be disbelieved. Whether the
accused
acted under a state of necessity is a question of fact, which is
addressed
to the sound discretion of the trial court. The legal aphorism is that
the findings of facts by the trial court, its calibration of the
testimony
of the witnesses of the parties and of the probative weight thereof as
well as its conclusions based on its own findings are accorded by the
appellate
court high respect, if not conclusive effect, unless the trial court
ignored,
misconstrued or misapplied cogent facts and circumstances of substance
which, if considered, will change the outcome of the case. We have
meticulously
reviewed the records and find no basis to deviate from the findings of
the trial court that the appellant was the provocateur, the unlawful
aggressor
and the author of a deliberate and malicious act of shooting the victim
at close range on the forehead.
chanrobles virtuallaw libraryred
First: When
Norberta heard her husband and the appellant arguing with each other in
the porch of their house, she went down from the balcony towards her
husband
and placed her hand on the latter's shoulders. She was shocked when the
appellant pulled out his handgun and deliberately shot the victim on
the
forehead, thus:chanrobles virtuallaw libraryred
Q Now,
you
said that when your husband was about to go out again in order to see
his
trisicad and as he opened the door he saw Jesus Retubado near the door.
What happened after that?chanrobles virtuallaw libraryred
A He asked Jesus
Retubado
why Jesus Retubado chased him when he was driving his trisicad.chanrobles virtuallaw libraryred
Q Now, as your
husband
was asking this question to the accused Jesus Retubado what was the
distance
to your husband at the time?chanrobles virtuallaw libraryred
A Just very near
to
him.chanrobles virtuallaw libraryred
Q And you to the
accused
at that very moment what was more or less your distance?chanrobles virtuallaw libraryred
A About an
armslength.chanrobles virtuallaw libraryred
Q When your
husband
asked Jesus Retubado why the latter chased him while your husband was
driving
his trisicad what was the answer of Jesus Retubado, if any?chanrobles virtuallaw libraryred
A My husband
asked the
accused Jesus Retubado what is his grudge to him and Jesus Retubado
answered
that it is not you who has a grudge to me but it is your son.chanrobles virtuallaw libraryred
Q When Jesus
Retubado
uttered that statement what transpired after that?chanrobles virtuallaw libraryred
A He immediately
pointed
his firearm that he was bringing (sic) to my husband Emmanuel
Cañon.chanrobles virtuallaw libraryred
Q By the way
considering
that you were just near to both your husband and the accused where did
that firearm that you said was pointed by the accused to your husband
come
(sic) from?chanrobles virtuallaw libraryred
A While the
accused
was standing in front of our door his hands were placed inside his
T-shirt
covered by his T-shirt.chanrobles virtuallaw libraryred
Atty. Pepito:chanrobles virtuallaw libraryred
We move to
strike
out the answer. It is not responsive, Your Honor. The question was,
where
did it come from?chanrobles virtuallaw libraryred
COURT:chanrobles virtuallaw libraryred
Let the
answer
stay in the record but let the witness answer again.chanrobles virtuallaw libraryred
A From the hands
of
accused Jessie.chanrobles virtuallaw libraryred
Fiscal Pansoy:chanrobles virtuallaw libraryred
Q Now, just a
while
ago you were making a motion using your hand placed inside your
T-shirt.
Now, when you saw the firearm for the first time where did you saw
(sic)
the firearm for the first time where did the firearm come from as you
saw
it from the hands of the accused?chanrobles virtuallaw libraryred
Atty. Pepito:chanrobles virtuallaw libraryred
Already
answered.
It came from the hands of the accused.chanrobles virtuallaw libraryred
Fiscal Pansoy:chanrobles virtuallaw libraryred
I will
reform.chanrobles virtuallaw libraryred
Q Before you saw
the
firearm in the hands of the accused where did the firearm come from?chanrobles virtuallaw libraryred
Atty. Pepito:chanrobles virtuallaw libraryred
She is
incompetent.
We object.chanrobles virtuallaw libraryred
COURT:chanrobles virtuallaw libraryred
Reform the
question.chanrobles virtuallaw libraryred
Fiscal Pansoy:chanrobles virtuallaw libraryred
Q Now, Mrs.
Witness,
before this question was asked to you as to where the firearm came from
you were making a motion by placing your hands inside your shirt when
you
were only asked as to where the firearm came from?chanrobles virtuallaw libraryred
A That was what
the
position of the accused when he was standing in front of our door and I
do not know what was inside his T-shirt. I only know that he was
carrying
a firearm when it fired.chanrobles virtuallaw libraryred
Q Now, when the
accused
pointed the firearm to your husband and fired the same more or less
what
was the distance between the accused and your husband at the very
precise
time when the firing was made?chanrobles virtuallaw libraryred
A It was just
very near
because his hand did not bend. (Witness demonstrating by pointing to
her
forehead).chanrobles virtuallaw libraryred
Q Now, more or
less,
describe to the Court the approximate distance between the firearm that
was pointed to your husband and the forehead of your husband at the
time
when the firing was done?chanrobles virtuallaw libraryred
A It touched the
forehead
of my husband.chanrobles virtuallaw libraryred
Q That was the
very
time that you heard the gunburst?chanrobles virtuallaw libraryred
A Yes.chanrobles virtuallaw libraryred
Q When the
accused fired
the firearm that was carried by him, what happened to your husband?chanrobles virtuallaw libraryred
A My husband
fell down
backward to the ground inside the house.chanrobles virtuallaw libraryred
Q By the way,
what was
the flooring of your house where your husband fell backward to the
ground?chanrobles virtuallaw libraryred
A Cemented.chanrobles virtuallaw libraryred
Q By the way
considering
that you were just very near to where the incident occurred can you
describe
the length of the firearm that was used by the accused in firing your
husband?chanrobles virtuallaw libraryred
A It was a short
firearm
about 6 inches.chanrobles virtuallaw libraryred
Q Now, as your
husband
fell down to the floor where did the accused proceed and what did the
accused
do?chanrobles virtuallaw libraryred
A He was just
casually
walking away as if nothing had happened.chanrobles virtuallaw libraryred
Q Now, what did
you
do to your husband, if any, after he fell down to the floor?chanrobles virtuallaw libraryred
A I have done
nothing
because I was somewhat shocked. I could not move because I was shocked.[16]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Second: After
shooting
the victim, the appellant fled from the situs criminis. He surrendered
to the police authorities only on November 6, 1993, but failed to
surrender
the gun he used to kill the victim. The appellant's claim that he
placed
the gun on the dining table before entering his bedroom to change his
clothes
is incredible. There is no evidence that the appellant informed the
police
authorities that he killed the victim in a state of necessity and that
his brother, Edwin, threw the gun into the sea. The appellant never
presented
the police officer to whom he confessed that he killed the victim in a
state of necessity.chanrobles virtuallaw libraryred
Third: The
appellant
had the motive to shoot and kill the victim. The victim ignored the
appellant
as the latter talked to him at the junction of Rizal and Gallardo
streets,
in the poblacion of Tuburan. The appellant was incensed at the
effrontery
of the victim, a mere pedicab driver. The appellant followed the victim
to his house where the appellant again confronted him. The appellant
insisted
on talking with the victim's son but the victim refused to wake up the
latter. The appellant, exasperated at the victim's intransigence,
pulled
out a gun from under his shirt and shot the victim on the forehead. It
was impossible for the victim to survive. With the appellant's
admission
that he shot the victim, the matter on whether he used his right or
left
hand to shoot the latter is inconsequential.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
We agree with the
contention
of the Solicitor General that there is no treachery in the present case
to qualify the crime to murder. To appreciate treachery, two (2)
conditions
must be present, namely, (a) the employment of the means of execution
that
give the person attacked no opportunity to defend himself or to
retaliate,
and (b) the means of execution were deliberately or consciously adopted.[17]
The prosecution failed to adduce an iota of evidence to support the
confluence
of the abovementioned conditions. Thus, the appellant is guilty only of
homicide under Article 249 of the Revised
Penal Code. Although the Information alleges that the appellant
used
an unlicensed firearm to shoot the victim, the prosecution failed to
prove
that the appellant had no license to possess the same. Hence, the
aggravating
circumstance of the use of an unlicensed firearm to commit homicide
should
not be appreciated against the appellant.chanrobles virtuallaw libraryred
The appellant is entitled
to the mitigating circumstance of voluntary surrender. He turned
himself
in to the police authorities prior to the issuance of any warrant for
his
arrest.chanrobles virtuallaw libraryred
The trial court awarded
P50,000.00 as civil indemnity[18]
to the heirs of the deceased. In addition, the heirs are entitled to
moral
damages in the amount of P50,000.00[19]
and the temperate damages in the amount of P25,000.00 since no
sufficient
proof of actual damages was offered.[20]chanrobles virtuallaw libraryred
WHEREFORE, the appealed
judgment is AFFIRMED with MODIFICATION. The appellant Jesus G. Retubado
alias "Jessie" is found GUILTY beyond reasonable doubt of homicide
defined
in and penalized by Article 249 of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate sentence of ten (10) years of
prision
mayor, in its medium period, as minimum, to fifteen (15) years of
reclusion
temporal, in its medium period, as maximum, and to pay the heirs of the
victim, Emmanuel Cañon, P50,000.00 as civil indemnity;
P50,000.00
as moral damages; and P25,000.00 as temperate damages.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Puno, Quisumbing,
Austria-Martinez
and Tinga, JJ., concur.chan
robles virtual law library
____________________________
Endnotes:
[1]
Penned by Executive Judge Gualberto P. Delgado.chanrobles virtuallaw libraryred
[2]
Record, p. 1.chanrobles virtuallaw libraryred
[3]
Exhibit "C," Records, p. 15.chanrobles virtuallaw libraryred
[4]
Exhibit "A," Id. at 10.chanrobles virtuallaw libraryred
[5]
Exhibit "H," id. at 9.chanrobles virtuallaw libraryred
[6]
TSN, 11 July 1995, pp. 8–9.chanrobles virtuallaw libraryred
[7]
Id. at 3–4.chanrobles virtuallaw libraryred
[8]
Rollo, p. 68.chanrobles virtuallaw libraryred
[9]
Id. at 41–42.chanrobles virtuallaw libraryred
[10]
Supra.chanrobles virtuallaw libraryred
[11]
Id. at 362, 365.chanrobles virtuallaw libraryred
[12]
Cuello Calon, Derecho Penal, Volume I, 8th ed., p. 202.chanrobles virtuallaw libraryred
[13]
"Que la situacion de necessidad no haya sido provocado
intencionadamente
por el sujeto." Id. at 368.chanrobles virtuallaw libraryred
[14]
Burdick, Law of Crimes, Volume 1, p. 238.chanrobles virtuallaw libraryred
[15]
Groizard, El Derecho Penal de 1870, Volume 1, 1929 ed.chanrobles virtuallaw libraryred
[16]
TSN, 26 July 1994, pp. 4–6.chanrobles virtuallaw libraryred
[17]
People vs. Parba, 364 SCRA 488 (2001).chanrobles virtuallaw libraryred
[18]
People vs. Delim, G.R. No. 142773, January 28, 2003.chanrobles virtuallaw libraryred
[19]
See People vs. Cortez, 348 SCRA 663 (2000).chanrobles virtuallaw libraryred
[20]
See People vs. Abrazaldo, G.R. No. 124392, February 7, 2003.chanrobles virtuallaw libraryred |