THIRD DIVISION
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
128871
March 18, 2003
-versus-
JIMMY RUBISO, ALIAS
"ALOG,"
Accused-Appellant.
D E C I S I
O N
SANDOVAL-GUTIERREZ,
J.:chanroblesvirtuallawlibrary
There can be no self-defense,
complete or incomplete, unless the victim has committed an unlawful
aggression
against the person defending himself.[1]
This is an appeal from
the decision of the Regional Trial Court, Branch 39, Iloilo City,
finding
appellant Jimmy Rubiso alias "Alog" guilty beyond reasonable doubt of
murder
and imposing upon him the penalty of reclusion perpetua under Article
248
of the Revised Penal Code.chanrobles virtuallaw libraryred
Jimmy Rubiso was charged
with murder under an Information filed with the said trial court, which
reads:
"That on or about November
6, 1992, in the Municipality of Pavia, Province of Iloilo, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused
armed with a firearm of unknown caliber, with deliberate intent and
decided
purpose to kill, with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and shoot
SERAFIN
W. HUBINES with said firearm the accused was then provided that time
inflicting
multiple gunshot wounds on the latter which caused his death
immediately
thereafter."[2]
The facts as narrated
by the Solicitor General in the appellee's brief are:
"Prosecution eyewitness
Alejandro Pulomeda testified that on November 6, 1992, he went to Jaspe
Metal Craft Industries (Jaspe) at Pavia, Iloilo to canvass the price of
a rice thresher. He intended to ask assistance from his friend,
Serafin
Hubines who was working at Jaspe. Then, he went straight and saw
Hubines busy putting a bolt on a rice thresher. Hubines was in a
squatting position. While he was walking toward Hubines'
direction,
he saw herein appellant also approaching Hubines' from behind. He
noticed that appellant's left hand was wrapped with a towel. As
appellant
walked closer to Hubines, he unwrapped his hand revealing a handgun of
unknown caliber, and shot Hubines. The latter still managed to
stand
but he was again successively shot by appellant. Pulomeda was
shocked
and frozen by what he witnessed. After a few minutes, he managed
to run out of the Jaspe's compound and went back home. On the
following
morning, nonetheless, he went to see the father of Hubines and narrated
to him everything he saw (TSN, December 14, 1993, pp. 3-24).chanrobles virtuallaw libraryred
"PO3 Ananias Gallaza
is a member of the Philippine National Police detailed at the residence
of Jaspe's owner, Andres Jaspe. He was the security guard on duty
at Jaspe on that fateful day. He remembered hearing gunshot while
he was in the comfort room at about 12 noon so he immediately went
out.
He went straight to the shop and saw Hubines lying on his back,
bloodied.
He and the other workers brought Hubines to the hospital (TSN dated
April
26, 1993, pp. 5-6, 9, 13-18, 21).cralaw:red
"Patrolman Danilo Opong,
another policeman detailed at Jaspe, testified that while he was eating
lunch, he heard a series of gunshots coming from the shop where the
threshers
were being manufactured. On his way to the shop, he met a certain
Romeo Alanto who informed him that Hubines had been shot by
appellant.
At the shop, he saw Hubines bathed in his own blood. He
immediately
placed appellant under custody and thereafter brought him to the police
station in Pavia (TSN, dated May 4, 1993, pp. 5, 10, 13, 19-25).cralaw:red
"Hubines arrived at
the hospital clinically dead. He was twice operated but in vain
(TSN,
dated July 20, 1993, pp. 5, 8-10).cralaw:red
"Medico-legal Dr. Tito
Doromal testified that he conducted a post-mortem examination on
Hubines.
He found six (6) bullet wounds on the body of the victim. One
bullet
wound in the right forehead, another bullet on the left side of the
neck
and four bullet wounds in the thoraco abdominal region. His
findings
led him to conclude that two bullet wounds were inflicted by the
assailant
while standing behind the victim (TSN, dated July 26, 1994, pp. 2-13)."[3]
The defense has a different
version.cralaw:red
Appellant has been working
as a welder at the Jaspe Light and Steel Industries. On November
6, 1992, while he was welding a tiller, Serafin Hubines, Jr. passed by
and kicked it. When he confronted appellant, the latter asked,
"Why,
do you want to fight?" Then Hubines boxed appellant on his
chest.
He fell down on a sitting position. At that point, Hubines pulled
his gun. Appellant immediately stood up and held Hubines'
hands.
They grappled for its possession and both fell on the ground.
Then
the gun exploded. According to appellant, he was not sure who
"caused"
the shot. He noticed that many people approached them.
Appellant
lied down on his stomach and covered his ears. That was the time
he heard three or more shots. He stood up and saw Hubines lying
on
the ground full of blood. He walked a few steps and met PO3
Danilo
Opong. Appellant told the latter that he was only defending
himself.
Patrolman Opong then arrested him and brought him to the Pavia Police
Station
for investigation. Meanwhile, Romeo Zuspa, a worker in the
compound,
took the firearm and gave it to Patrolman Opong who, in turn,
"surrendered"
it to his station.cralaw:red
Resty Amado, also a
worker in the same compound, corroborated appellant's testimony.cralaw:red
After hearing, the trial
court rendered a decision convicting appellant of the crime charged,
the
dispositive portion of which reads:
"WHEREFORE, premises
considered, the accused Jimmy Rubiso is hereby found guilty beyond
reasonable
doubt of the crime of Murder as provided under Art. 248 of the Revised
Penal Code, and there being no mitigating or aggravating circumstance,
is hereby sentenced to suffer the penalty of reclusion perpetua.
Said accused is further ordered to pay the father of the deceased the
amount
of P106,288.85 as actual damages and to the legal heirs of the deceased
the amount of P50,000.00 for his wrongful death, P30,000.00 as moral
damages;
P560,000.00 for loss of earning capacity and costs of the suit.[4]
"The accused who is
detained, is hereby credited with the number of days he spent under
detention,
if he is qualified, otherwise, he shall be credited only with four
fifths
(4/5) of his preventive imprisonment. The accused is further
ordered
to be sent to the National Penitentiary in Muntinlupa, Metro Manila,
even
if he appeals.cralaw:red
"SO ORDERED."
Hence, this appeal.chanrobles virtuallaw libraryred
Appellant ascribes to
the trial court the following errors:
"I. THE
LOWER COURT ERRED IN FINDING THAT ACCUSED FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THE ELEMENTS OF SELF-DEFENSE DESPITE THE FACT THAT
THE ACCUSED PROVED THE THREE ELEMENTS OF SELF-DEFENSE;
"II.
GRANTING
ARGUENDO THAT ACCUSED WAS NOT ABLE TO PROVE ALL THE ELEMENTS OF
SELF-DEFENSE,
THE LOWER COURT ERRED WHEN IT SENTENCED THE ACCUSED TO LIFE
IMPRISONMENT
BECAUSE EVIDENCE SHOW (sic) THAT THERE WAS INCOMPLETE SELF-DEFENSE,
HENCE
ACCUSED IS ENTITLED TO A LOWER PENALTY OF ONE OR TWO DEGREES AS
PROVIDED
IN ARTICLE 69 OF THE REVISED PENAL CODE;
"III. GRANTING
ARGUENDO
THAT ALL THE ELEMENTS OF SELF-DEFENSE WERE ABSENT, THE LOWER COURT
ERRED
IN FINDING THAT THE CRIME COMMITTED BY THE ACCUSED IS MURDER ATTENDED
BY
TREACHERY, BECAUSE EVIDENCE SHOWS THAT THERE WAS NO TREACHERY, AS A
MATTER
OF FACT, THE VICTIM CHALLENGED THE ACCUSED TO A FIGHT BEFORE HE WAS
KILLED,
HENCE IF ACCUSED INDEED COMMITTED THE ACT, HE SHOULD BE PUNISHED FOR
THE
CRIME OF HOMICIDE."
In invoking self-defense,
appellant is deemed to have admitted having killed the victim and the
burden
of evidence is shifted on him to establish convincing evidence that
excludes
any vestige of criminal aggression on his part.[5]chanrobles virtuallaw libraryred
To successfully claim
self-defense, the accused must prove the existence of the following:
(1)
unlawful aggression on the part of the victim; (2) reasonable necessity
of the means employed by the person being attacked to prevent or repel
it; and (3) lack of sufficient provocation on the part of the person
defending
himself.[6]
Unlawful aggression is a condition sine qua non for the justifying
circumstance
of self-defense. It contemplates an actual, sudden and unexpected
attack, or imminent danger thereof, and not merely a threatening or
intimidating
attitude. The person defending himself must have been attacked
with
actual physical force or with actual use of weapon.[7]
Of all the elements, unlawful aggression, i.e., the sudden unprovoked
attack
on the person defending himself, is indispensable.[8]
Appellant insists that
when the victim pulled out his gun, both grappled for its
possession.
They fell and there were bursts of gunfire. He must have killed
the
victim but he was only defending himself.cralaw:red
Assuming that Hubines
had a gun and pulled it, however, records show that he did not manifest
any aggressive act which may have imperiled the life and limb of herein
appellant. It is axiomatic that the mere thrusting of one's hand
into his pocket as if for the purpose of drawing a weapon is not
unlawful
aggression.[9]
Even the cocking of a rifle without aiming the firearm at any
particular
target is not sufficient to conclude that one's life was in imminent
danger.[10]
Hence, a threat, even if made with a weapon, or the belief that a
person
was about to be attacked, is not sufficient. It is necessary that
the intent be ostensibly revealed by an act of aggression or by some
external
acts showing the commencement of actual and material unlawful
aggression.[11]
Another factor which
militates against appellant's claim of self-defense is the nature and
number
of wounds suffered by the victim.cralaw:red
Dr. Tito Doromal, who
conducted the autopsy examination, found that the victim's body
sustained
six (6) bullet wounds. One bullet wound was on the right forehead
and another on the left side of the neck. Four (4) bullet wounds
were along the thoraco abdominal region.cralaw:red
The location and presence
of gunshot wounds on the body of the victim eloquently refute
appellant's
allegation of self-defense. It is an oft repeated rule that the
presence
of a large number of wounds, their location and their seriousness would
negate self-defense. Instead, they indicate a determined effort
to
kill.[12]
We thus agree with the
trial court that appellant, in killing the victim, did not act in
self-defense.cralaw:red
The prosecution was
able to establish that appellant suddenly and unexpectedly shot the
victim
at the back without any provocation on his part. In fact the
trial
court found that "Bullet wounds Nos. 3 and 4 on the thoraco abdominal
region
were inflicted while the assailant was at the back of the
victim."
The essence of treachery is the sudden and unexpected attack by an
aggressor
on an unsuspecting victim, depriving the latter of any real chance to
defend
himself, thereby ensuring without risk to the aggressor the commission
of the crime.[13]
There being treachery, appellant must be convicted of murder.cralaw:red
Under Article 248 of
the Revised Penal Code, as amended, the penalty imposable when the
crime
was committed in 1972 is reclusion temporal in its maximum period to
death
which has a duration of 17 years, 4 months and 1 day to death.
There
being no mitigating or aggravating circumstance that attended the
commission
of the crime, the imposable penalty is the medium period of reclusion
temporal
in its maximum period to death which is reclusion perpetua.
Hence,
the trial court imposed the correct penalty upon appellant.chanrobles virtuallaw libraryred
On the civil aspect
of the case, we affirm the trial court's award of P50,000.00 as civil
indemnity
to the heirs of the victim. By way of exemplary damages based on
the presence of the qualifying circumstance of treachery, an amount of
P25,000.00 should be awarded to the said heirs.[14]
As to actual damages,
Serafin Hubines, Sr. presented the receipts showing that he spent
P106,288.85
as hospital and medical expenses; P13,000.00 as funeral expenses, or a
total of P119,288.85.[15]
We increase the trial
court's award of moral damages from P30,000.00 to P50,000.00 in line
with
current jurisprudence.[16]
The purpose of such award is not to enrich the heirs of the victim but
to compensate them for their wounded feelings.[17]
As borne out by human nature and experience, a violent death, such as
the
one at bar, invariably and necessarily brings about emotional pain and
anguish on the part of the victim's family. It is inherently
human
to suffer sorrow, torment, pain and anger when a loved one becomes the
victim of a violent or brutal killing. Such violent death not
only
steals from the family of the deceased his precious life, deprives them
forever of his love, affection and support, but often leaves them with
the gnawing feeling that an injustice has been done to them. For
this reason, moral damages must be awarded even in the absence of any
allegation
and proof of the heirs' emotional suffering.[18]
As to the victim's earning
capacity, the trial court found that his annual gross income at the
time
of his death was P76,800.00 computed at the rate of P1,600.00 a week
for
forty-eight (48) weeks. From this amount is deducted the
necessary
and incidental expenses, estimated at 50%, leaving a balance of
P38,400.00.[19]
His net annual income would then be multiplied by his life expectancy,
using the following formula: 2/3 x 80-34 (age of the victim at time of
death). Considering that he was 34 years old when he died, his
life
expectancy would be 31. Multiplying the net balance of his annual
income by his life expectancy, the loss of his earning capacity is
P1,190,400.00,
thus:chanrobles virtuallaw libraryred
In computing the life
expectancy of a person the following formula is used:
Life expectancy -
2/3 x [80 - the age
of the victim at the time of death or 34] = 30.66 or 31
Loss of earning capacity
-
P38,400.00 [net
annual income] x life expectancy =
P1,190,400.00[20]
A modification of the
trial court's finding that the victim's loss of earning capacity
amounts
to P560,000.00 on the basis of a life expectancy of 28 years is,
therefore, in order.chanrobles virtuallaw libraryred
WHEREFORE, the assailed
decision of the trial court in Criminal Case No. 39400 finding
appellant
JIMMY RUBISO alias "Alog" guilty beyond reasonable doubt of the crime
of
murder and sentencing him to suffer the penalty of reclusion perpetua
is
hereby AFFIRMED, with the MODIFICATION that he is further ordered to
pay
the heirs of the deceased (a) P119,288.85 as actual damages; (b)
P50,000.00
as moral damages; and (c) P1,190,400.00 representing the loss of his
earnings.cralaw:red
Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman),
Panganiban,
Corona and Carpio-Morales, JJ.,
concur.cralaw:red
____________________________
Endnotes:
[1]
People vs. Flores, G.R. No. 138841, April 4, 2001, 356 SCRA 332.
[2]
Rollo at 10.chanrobles virtuallaw libraryred
[3]
Id. at 121-124.
[4]
Id. at 34.
[5]
Galang vs. Court of Appeals, G.R. No. 128536, January 31, 2000, 324
SCRA
139, 144, citing People vs. Sarense, G.R. No. 97438, October 20, 1992,
214 SCRA 780.
[6]
People vs. Bonifacio, G.R. No. 133799, February 5, 2002; People vs.
Iglesia,
G.R. No. 132354, September 13, 2001, 365 SCRA 166.
[7]
Tangaiin vs. Bonifacio, G.R. No. 133799, February 5, 2002; People vs.
Ebrada,
G.R. No. 122774, September 25, 1998, 357 Phil. 345.
[8]
People vs. Iglesia, supra at 166, citing People vs. Cotas, G.R. No.
132043,
May 31, 2000, 332 SCRA 627.chanrobles virtuallaw libraryred
[9]
People vs. Calantoc, G.R. No. L-27892, January 31, 1974, 55 SCRA 458,
461.chanrobles virtuallaw libraryred
[10]
Almeda vs. Court of Appeals, G.R. No. 120853, March 13, 1997, 269 SCRA
643, 650.chanrobles virtuallaw libraryred
[11]
People vs. Patalinghug, G.R. Nos. 125814-15, November 16, 1999, 318
SCRA
116, 135, citing Almeda vs. Court of Appeals, id.
[12]
People vs. Quening, G.R. No. 132167, January 8, 2002; People vs.
Belbes,
G.R. No. 124670, June 21, 2000, 334 SCRA 161, 167.
[13]
People vs. Tumayao, G.R. No. 137045, April 16, 2001, 356 SCRA 491, 505,
citing People vs. Belbes, id.chanrobles virtuallaw libraryred
[14]
People vs. Catubig, G.R. No. 137842, August 23, 2001, 363 SCRA 621.chanrobles virtuallaw libraryred
[15]
Records at 337-340.chanrobles virtuallaw libraryred
[16]
People vs. Niel Piedad, et al., G.R. No. 131923, December 5, 2002,
citing
People vs. Mosquerra, G.R. No. 129209, August 9, 2001, 362 SCRA 441;
People
vs. Dan Ave, G.R. Nos. 137274-75, October 18, 2002.chanrobles virtuallaw libraryred
[17]
People vs. Danilo Cueto, G.R. No. 147764, January 16, 2003, citing
People
vs. Galvez, G.R. No. 130397, January 17, 2002.
[18]
People vs. Niel Piedad, et al., supra; People vs. Frank Lobregas, et
al.,
G.R. No. 147649, December 17, 2002 citing People vs. Labitad, G.R. No.
132793, May 7, 2002; Carlos Arcona vs. Court of Appeals and People,
G.R.
No. 134784, December 9, 2002; People vs. Pablito Ilo, G.R. No. 140731,
November 21, 2002, citing People vs. Victoriano Ernosa, et al., G.R.
No.
137273, September 17, 2002.
[19]
People vs. Visperas, Jr., G.R. No. 147315, January 13, 2003, citing
People
vs. Laut, G.R. No. 137751, February 1, 2001, 351 SCRA 93, 99.
[20]
People vs. Wilson Antonio, Jr., G.R. No. 144266, November 27, 2002. |