FIRST DIVISION
REYNALDO CRISTE
UNIDAD,
Petitioner,
G.R.
No.
129201
March 11, 2003
-versus-
HON. COURT OF
APPEALS
AND PEOPLE
OF THE PHILIPPINES,
Respondents.
D E C I S I
O N
AZCUNA,
J.:chanroblesvirtuallawlibrary
This is a petition for
review on certiorari under
Rule 45 of the Rules of Court.
Petitioner,
Reynaldo Criste Unidad, appeals from a decision[1]
of the Court of Appeals dated November 14, 1996 and the resolution[2]
denying the motion for reconsideration dated April 30, 1997, in CA-G.R.
No. 17129.
Said decision affirmed
an amended decision[3]
of the Regional Trial Court of Manila, Branch 14, dated September 5,
1994.cralaw:red
The dispositive portion
of the trial court's amended decision reads, as follows:
WHEREFORE, finding the
accused guilty of the crime of Homicide as charged in the Information
defined
and penalized under Article 249 of the Revised Penal Code, he is hereby
sentenced to suffer an indeterminate penalty of TWELVE (12) YEARS of
PRISION
MAYOR, as its minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
RECLUSION
TEMPORAL, as its maximum, and to pay the cost.cralaw:red
He is further sentenced
to indemnify the heirs of the deceased:
a. P50,000.00
for the death of the victim;
b. P192,000.00
as unearned income; andchanrobles virtuallaw libraryred
c. P132,000.00
for actual expenses pursuant to Articles 104 and 105 of the Revised
Penal
Code.cralaw:red
SO ORDERED.cralaw:red
Petitioner was, at the
time material to this case, the Chief Operations Officer of the Western
Police District of the Philippine National Police, with headquarters at
U.N. Avenue, Manila.cralaw:red
On January 29, 1993,
petitioner was charged of the crime of homicide, in an information that
alleged, as follows:
That on or about January
26, 1993, in the City of Manila, Philippines, the said accused with
intent
to kill did then and there willfully, unlawfully and
feloniously
attack, assault and use personal violence upon the person of IRENEO
DELA
CRUZ Y VARGAS by then and there shooting the latter hitting him on the
left portion of his chest thereby inflicting upon him mortal gunshot
wound
which was the direct and immediate cause of his death thereafter.chanrobles virtuallaw libraryred
Contrary to law.cralaw:red
Arraigned, petitioner
entered a plea of not guilty. Trial followed.
The Prosecution's
Evidence
The prosecution's witnesses
were Rosita dela Cruz, Grace dela Cruz Baltazar, Dr. Manuel Lagonera
and
SPO2 Norberto Obrero.cralaw:red
Rosita dela Cruz testified[4]
that: At the time of his death, her son Ireneo dela Cruz, Jr. was
employed as Jail Officer-1, as shown by the certification[5]
of the Bureau of Jail Management and Penology, with a monthly salary of
P3,120.00. They incurred funeral and other expenses, due to said
death, in the total amount of P131,500.00.[6]
At the time of his death, Ireneo dela Cruz, Jr. had a common law wife
and
three children, namely: Julie, 7 years old; Jojo, 6 years old; and
April,
5 years old, all living with them in their house in Kamuning, Quezon
City,
and she is the one supporting them now.cralaw:red
She further testified
that: On January 26, 1993, at about 8:30 o'clock in the evening,
Ireneo dela Cruz, Jr. was on official mission at Ma. Cristina St.,
Sampaloc,
Manila. She was aware of this because whenever he was on a
special
mission which was dangerous, he used to ask permission before leaving
because
his father is a policeman. At around 10:00 o'clock that same
evening,
they received an information concerning the death of Ireneo.
Hence,
they proceeded to the International Funeral Homes. Upon arriving
thereat, at about 11:00 o'clock in the evening, she saw her son
embalmed.
She asked the caretaker why she did not inform them first, considering
that the victim had an I.D. card on his chest, and they answered that
it
was the instruction of Dr. Manuel Lagonera, the Medico-Legal
Officer.
She has a picture of her son in the newspaper when he fell down at the
gate.[7]chanrobles virtuallaw libraryred
Grace Cruz-Baltazar
testified[8]
that: On January 26, 1993, at about 8:40 o'clock in the
afternoon,
she, her mother and the common law wife of the victim, were in their
house
in 14-K 1st Kamuning St., Quezon City.cralaw:red
Ireneo dela Cruz, who
was her brother, was not with them as he was in an official mission
pursuant
to the order of the Warden of Quezon City. She learned about the
order because on January 24, 1993 at about 8:00 o'clock in the morning,
she received a call asking for her brother. At first, she was hesitant
to give the call to her brother but the caller was insistent and
according
to him, he was an informer, so she called her brother and gave the
telephone.
After their conversation, her brother told him that the informer told
him
that the convict he was looking for was hiding at Ma. Cristina St.cralaw:red
On January 25, 1993
at around 8:00 o'clock in the evening, her brother arrived very happy
and
told them that what the informer told him that the escapee Pedrito
Oroños
was there at Ma. Cristina St. is true. However, he had a problem
as he learned that Pedrito Oroños is being cuddled by a
"siga-siga"
who is likewise being protected by a WPD officer. She got scared
and told him to take care. Her brother assured her not to worry
because
he had undergone training and that his co-policeman could understand
him.
On January 26, 1993, at about 10:00 o'clock in the evening, their
father
sent someone to inform them that her brother was killed. She had
executed an affidavit.[9]chanrobles virtuallaw libraryred
Dr. Manuel Lagonera
testified[10]
that: On January 26, 1993, he performed an autopsy of the body of
Ireneo dela Cruz, Jr. He performed the autopsy at 9:15 o'clock in
the evening after receiving a verbal request of the Homicide Section of
the police department. He prepared a Post Mortem Report.[11]
The cause of death[12]
was a gunshot wound with the entry at the left antero-lateral thorax,
as
shown on the sketch of a human body[13]
and the exit[14]
at the middle of the right side of the back.cralaw:red
At the time he conducted
the autopsy at 9:30 o'clock in the evening, he determined that the
person
died three hours before said time, as the body was then at the state of
primary lapcidity and pale. Considering the injuries
sustained
by the victim, the victim could have survived from 5 to 10 minutes
after
the infliction of the first shot. Even if the victim had been
rushed
to the nearest hospital, he could not have survived considering that
the
injuries sustained in the left lung was so intensive. His
estimate
is that the nozzle of the gun was about two feet away from the point of
entry.cralaw:red
SPO2 Norberto Obrero
testified[15]
that: He was the investigator on duty from 3:00 to 11:00 o' clock
in the evening on January 26, 1993. He received a call from Chief
Inspector Reynaldo Unidad who informed their office that he was
involved
in a shootout wherein he gunned down his quarry along Ma. Cristina St.
near the corner of Fajardo St., Sampaloc, Manila.cralaw:red
He took the picture
of the [cadaver] and made a sketch of [the same]. Then he
gathered
information concerning the identity of the victim and witnesses to the
incident. He found out that the victim was wearing a sleeveless
vest
jacket, sporting an ID Card, a holster and a wallet and some pertinent
paper belonging to the victim. He then instructed the personnel
of
the International Funeral Homes to bring the body to the morgue for
autopsy.
He prepared a report of the incident.[16]
He also prepared an affidavit of arrest[17]
dated January 27, 1993 to the Inquest Prosecutor. At the time he
took the picture[18]
from the waist up of the victim, there was an empty holster as the
firearm
of the victim was then in the possession of the accused.chanrobles virtuallaw libraryred
He was able to recover
from the body of the victim an ID which states: BJMP, DILO, Bureau of
Jail
Management and Penology, Quezon City Jail, EDSA, Quezon City; C-054
Security
Control Tag No. QC-054, Quezon City Jail with the name of the
owner/holder,
Jail Officer 1 Ireneo dela Cruz; designation: Escort Security,
and
purportedly signed by Temistocles Jamisolamin, Quezon City Warden.[19]
He also found a Mission Order[20]
dated January 15, 1993 which indicates the service firearm of the
victim,
Cal .38 Armscor Revolver, Serial No. 31091 with 18 rounds of
ammunition.
Another paper that he found was a Memorandum Receipt[21]
covering the firearm .38 Caliber Armscor, Phil. Model 201, and a
US-made
handcuff, signed by JO1 Jorge dela Rosa, supply Sergeant, DILG.
He
also found an ammo pouch, a lighter case, a bunch of keys, an NBI
Clearance[22]
and a Special Order.[23]
The Defense's
Evidence
The defense witnesses
were Nelson T. Fuggan, Demelen Renton dela Cruz, Eduardo Herrera, Norma
Payawal, petitioner himself, and three others.cralaw:red
Nelson T. Fuggan, the
Chief Ballistician of the Criminal Investigation Division of the Manila
Police Department's Western Police District, testitied[24]
that: He prepared the Laboratory Report No. B-939261,[25]
dated February 3, 1993. His findings were that only one shot was
fired from the firearm of the petitioner (a .357 caliber magnum
revolver
with Serial No. KE-440312), and three shots were fired from that of the
victim (a .38 caliber revolver with Serial No. 31091).cralaw:red
Demelen Renton dela
Cruz testified[26]
that: She has been a forensic chemist since 1981. She had
examined
the left and right hands of Ireneo dela Cruz in order to determine the
presence of nitrates. She stated her findings in Chemistry Report
No. C-93-61.[27]
She affirmed the truth and correctness of her findings, particularly
that
the presence of nitrates on the left and right hands of Ireneo dela
Cruz
means that he had fired a gun.cralaw:red
She also examined petitioner's
black American eagle shoulder bag, and one light brown necktie, one
folded
umbrella and a pair of gray socks. She put her findings in
Chemistry
Report No. C-93-91.[28]
She examined these specimen in order to determine the appropriate gun
shot
range, which she determined to be as follows: for the necktie, 6
inches; bag, 36 inches; umbrella, 2 to 8 inches; the right sock, over
30
inches; and the left sock, 30 inches.cralaw:red
Eduardo Herrera testified[29]
that: He is a vendor residing at 732 Ma. Cristina St., Sampaloc,
Manila. He executed a statement before the police on January 26,
1993 at 10:30 o'clock in the evening. He stated in his affidavit
that he heard four shots. The first and second shots that he
heard
came from the gun of the victim while third gunshot came from the gun
of
the accused and the fourth gunshot came from the gun of Ireneo dela
Cruz.chanrobles virtuallaw libraryred
He knows that the first
shot that he heard was fired by Ireneo dela Cruz because he was then
two
arms length away from him when he fired his gun. The accused
fired
his gun because the victim was about to shoot him. The victim was
only 1-1/2 arms length from the accused when the latter fired his
gun.
The victim was about two arms length away from the accused when he shot
the accused. When he fired two successive shots at the accused,
the
victim and the accused were then facing each other. The victim
fired
two shots at the accused while the victim and the accused were facing
each
other at a distance of about two meters after which he saw the victim
fall
down. The accused was not hit by the victim. When the
accused
shot the victim, the victim fell down at the gate of Mrs. Payawal, then
the victim fired another shot at the accused. Then he went to
disarm
the victim and he gave the gun of the victim to the accused. The
accused then went to call for a policeman while he guarded the
victim.
When the accused left to call for a policeman by telephone, the victim
was not moving. He did not talk to the victim nor did he touch
him
while he was with him. Among the many people who were then
present
were Barangay Chairman Abes, Mr. Selda and Mr. Awak.cralaw:red
Norma Payawal testified[30]
that: She owns a store at 719 Ma. Cristina St., Sampaloc,
Manila.
On January 26, 1993 in the evening, Ireneo dela Cruz alias
George arrived very drunk and holding a gun in front of her
store.
George bought a bottle of beer which he drunk inside a jeepney.
While
he was drinking the beer inside the jeepney, two men who looked liked
policemen,
as that they had guns tucked in their waists, suddenly arrived and held
George at the back of his waistline. George was then drinking
beer,
shouting and creating trouble.cralaw:red
After a few minutes,
Jojo passed by and George blocked his way and poked his gun to
Jojo.
Somebody said, "Pag-usapan na lang ninyo iyan." He does not know
the person who uttered those words; however, he later learned that it
is
Mang Rey, Reynaldo Unidad. After Reynaldo Unidad told George,
"Pare,
pag-usapan na lang ninyo iyan," George turned his gun towards Jojo
saying,
"Putang Ina mo Jojo, papatayin kita." Reynaldo Unidad then
identified
himself as a policeman and told him to put away his gun, saying, "Pare,
ibaba mo iyan baka makadisgrasya ka, pulis ako." George then turned his
gun and poked it to Mang Rey saying, "Isa ka pa, huwag kang
makialam."
George then fired a shot. The victim shot the accused by holding
the gun with both hands. She heard two successive shots almost
simultaneously.cralaw:red
After hearing the two
successive shots, she went inside her store and while inside her store,
she heard another shot and then she heard somebody shouting, "Dalhin sa
ospital, tulungan ninyo ako." All in all, she heard four shots.cralaw:red
Reynaldo Unidad, petitioner,
testified[31]
that: He is the Chief Operations Officer of the Western Police
District
and his duties are to attend conferences regarding operations, prepare
reports for the District Director, prepare the Oplan which is the
operational
plan, the IMPLAN which is the implementing plan and operational order,
and other administrative and staff work.cralaw:red
While he was walking
on his way home on January 26, 1993, he was approached by Eduardo
Herrera
who volunteered to carry his bag of dirty clothes and accompanied him
home.
But while they were walking along Ma. Cristina St., he heard a shout
coming
from his back saying, "Putang Ina mo, Jojo, bakit mo ako isinuplong,
bakit
mo ako kinakalaban, pati nanay ko, kinakalaban mo."
He looked back and,
at that instance, a man wearing a black chaleco, maong pants and a pair
of white rubber shoes intercepted them, shouting, and then poked his
gun
directly at Jojo. Jojo answered, "Putang Ina mo, hindi naman ako
ang nag-ano eh, kayo nga ang nagwawalanghiya sa nanay ko, vendor lang,
hinihingian mo ng P20.00, tapos pinakulong mo pa sa presinto." He
advised the man to put down his firearm and said, "Pare, baka naman
puwede
mong ibaba ‘yan at pag-usapan ninyo na lang and problema ninyo."
He thought then that he was only joking as they may be acquainted with
each other. However, the man turned his ire at him and aimed the
firearm towards him but when he remained silent and did not move, the
man
again aimed the gun at Jojo. While holding the firearm with
both hands pointed at Jojo, the man said, "Putang Ina mo, Jojo,
papatayin
kita."chanrobles virtuallaw libraryred
At this juncture, he
introduced himself as a policeman saying, "Pare, pulis ako, pakibaba mo
ang baril mo, baka pumutok iyan, baka tumama iyan, makapatay ka
pa."
Then the man directed the cocked firearm at him saying, "Putang Ina mo,
isa ka pa," and then, bang! Believing that he was hit and that
his
life was actually in danger, he drew his gun and exchanged fire with
the
man. He saw the man slump on his back towards the gate of 719-E
Ma.
Cristina St., while firing another shot and then Jojo Herrera dived
upon
the man and took his firearm which he gave to him.cralaw:red
He left the victim and
then went to look for a telephone nearby in order to call for police
assistance.
He was able to contact the desk officer of the Mobile Bay Patrol and
the
desk officer of the Homicide Section of the WPD. Then he returned
to the crime scene and he saw that the place was already milling with
hundreds
of people including policemen of the Ramon Magsaysay Detachment, the
press
people and the crew of the Mobile Bay Patrol, and the investigator of
the
homicide section. He immediately turned over to the latter the
firearm
of the victim and his service firearm.cralaw:red
The first shot directed
at him hit his lower left forearm and then hit his bag, then the second
shot hit the bottom portion of his bag. The first shot hit his
left
forearm and then hit the bag with entry[32]
and exit at the other side of the bag.[33]
The second shot hit the bottom of his bag.[34]
After the second shot which was directed at him, thinking that he was
hit
and that his life was in actual danger, petitioner, who is left-handed,
fired his gun from the level of his waist by bending his body at the
left
side, making a hurried "hip shot." After shooting the victim, the
victim slumped at the gate of Mrs. Payawal.cralaw:red
The defense also presented
police officer Alejandro Diego, Barangay Captain Alfredo Abes and a
neighbor
of the victim, Ernesto Awak.cralaw:red
The police officer testified[35]
that: At around 7:15 o'clock in the evening of January 26, 1993,
he proceeded to Ma. Cristina St. after being informed by Mr. Selda and
Mr. Awak of that place that a man posing as a police officer was
creating
trouble thereat; that upon arrival there, he escorted the victim and
brought
him to the detachment office to verify his identification; that he
found
out that he was a member of the Quezon City Jail Police and had an ID
Card
and Memorandum Receipt but could not produce a Mission Order; that he
released
the suspect thereafter. He further testified that, subsequently,
at about 8:15 o'clock that evening, the same persons, Selda and Awak,
reported
to their detachment the shooting incident and he informed the homicide
section about the report and together with SPO1 Robert Tong, he
responded
and went to the same place where they cordoned off the area; that the
victim
was already dead when they arrived; that the homicide section
investigator
was already there, namely, SPO2 Norberto Obrero; that a lot of people
were
there, including those from the media; and that he left the scene
before
the body was removed.cralaw:red
The Barangay Captain
testified[36]
that: He saw the victim before the incident happened and that the
victim was there holding a gun in his hand in the place of the incident.cralaw:red
The neighbor testified[37]
and identified his affidavit[38]
and added, on cross-examination, that he saw the victim 5 or 6 times
before
the incident, conversing and drinking with his friends at the store of
Norma Payawal or at parked jeeps in the street.chanrobles virtuallaw libraryred
The Decisions of the
Trial Court and the Court of Appeals
On August 31, 1994,
the trial court promulgated its decision, but subsequently, under date
of September 5, 1994, it made an amended decision, which petitioner now
claims was promulgated only on September 16, 1994, after he had
perfected
his appeal.cralaw:red
Both decisions, however,
contained the same dispositive portion earlier quoted. As
aforementioned,
the Court of Appeals, in its decision and resolution under review,
affirmed
the amended decision of the trial court.
Petitioner's
Grounds
Petitioner advances
the following grounds[39]
for review:
A.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN ACTING UPON
THE
AMENDED DECISION (ANNEX "B") INSTEAD OF THE ORIGINAL DECISION (ANNEX
"A")
OF JUDGE MALIAMAN, NOTWITHSTANDING THAT SAID AMENDED DECISION WAS NOT
PROMULGATED,
AND THAT, EVEN IF THERE WAS PROMULGATION, THE APPEAL OF UNIDAD HAD BEEN
ALREADY PERFECTED AND THE 15-DAY REGLEMENTARY PERIOD HAD ALREADY
EXPIRED.
B.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN HOLDING THAT
UNIDAD'S SHOOTING OF IRENEO, WHICH RESULTED IN THE LATTER'S DEATH, DID
NOT MEET THE REQUIREMENT OF REASONABLE NECESSITY OF THE MEANS EMPLOYED
TO REPEL THE ATTACK.
C.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN REJECTING
COMPLETE
SELF-DEFENSE, ON THE BASIS OF ADDITIONAL SURMISES AND NON-SEQUITUR
CONCLUSIONS.
D.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN NOT
ACQUITTING
UNIDAD.
E.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN NOT AT LEAST
GIVING UNIDAD THE BENEFIT OF OBVIOUS MITIGATING CIRCUMSTANCES.
F.
RESPONDENT
COURT
OF APPEALS COMMITTED GRAVE AND REVERSIBLE ERROR OF LAW IN SUSTAINING
THE
AWARD OF BASELESS AND EXORBITANT DAMAGES FOR THE DEATH OF IRENEO.
The Court's Ruling
A. The Amended
Decision
A comparison of the
decision and amended decision of the trial court readily shows that no
substantial variance exists. The trial court merely made more
clear
which side presented which witness, but the contents of their
testimonies
remained the same. As stated, the dispositive portions are
identical,
and the same is consistent with the rest of both the decision and the
amended
decision.chanrobles virtuallaw libraryred
It can, therefore, be
concluded that no prejudice resulted to any party from the amendment,
and
that it referred only to insubstantial matters. The same is
clearly
well within the inherent powers of courts to amend and control their
processes
and orders to make them conformable to law and justice.[40]
Furthermore, there is no showing that the records had been forwarded to
the Court of Appeals at the time said amendment was effected.cralaw:red
B. The Merits
of Petitioner's Case
In any event, we have
reviewed the entire records of the case to determine the merits of
petitioner's
appeal.cralaw:red
To start with, petitioner
claimed self-defense, thereby shifting upon him the burden of the
evidence
to prove that: (1) the victim unlawfully attacked him; (2) he
took
the necessary means to repel the attack; and (3) he did not provoke
said
attack. Petitioner had to prove these by clear and convincing
evidence.[41]
The first element, that
of an unlawful aggression upon him by the deceased, has not been proved
by such required quantum of evidence.cralaw:red
The defense's version,
as recounted principally by petitioner himself, is that:
Petitioner
shot the victim while the two were facing each other. In fact,
petitioner
described his shot as a "hip shot," i.e., from the level of his
waist.
Petitioner's firearm must have to be pointed upwards, to hit the victim
at the site of the entry wound, the upper part of his left chest.
And yet, the bullet exited at the lower part of the victim's right
back,
showing a downward trajectory.cralaw:red
The trial court, therefore,
correctly found that the physical evidence did not square with
petitioner's
version of the event, thus:chanrobles virtuallaw libraryred
In demonstrating how
he shot the victim, the accused held his gun with his left hand at the
level of his waist at his left side. Then, he bent his body at
his
left side thereby causing his gun to point upward. Consequently,
the trajectory of the bullet should have been upward and the entry of
the
bullet at the body of the victim should have been lower than its
exit.
However, the entry of the bullet Exhibit A-6 located at the breast of
the
victim at the level of the armpit is much higher than the exit of the
bullet
Exhibit A-7 at the back of the victim. This is evident from the
Autopsy
Report (Exhibit A-2) which states:
1. Gunshot wound, thru
and thru, with the following points of entry and exit:
Point of entry - at
the left antero-lateral thorax, at the level of left 2nd inter-costal
space,
51-1/4 inches from heel, 15 cms. from anterior midline, measuring
0.5X0.7
cm. and contusion collar measures 1.2x1 cms.cralaw:red
Point of exit - at the
right posterior thorax, 47-1/4 inches from heel, 4 cms. From posterior
midline, measuring 1.5x1 cms.cralaw:red
Trajectory - the bullet
course was directed obliquely downwards, backwards crossing midline,
severely
lacerating the upper lobe of the left lung, primary bronchus and
pulmonary
blood vessels, then it crossed the midline before [it] exited at the
right
posterior thorax at the level of the 7th cervical vetebra. A
copper
jacketed slug was recovered upon removal of the clothing.cralaw:red
INTERNAL FINDINGSchanrobles virtuallaw libraryred
1. Injuries to organs
and tissues as indicated in the internal extension of the gunshot
wound,
with massive bleeding in the thoracic cavity.cralaw:red
2. The rest of the internal
organs were pale.cralaw:red
3. About one cup of
partially digested food particles with alcoholic odor was recovered
from
the stomach.cralaw:red
CAUSE OF DEATH
Shock secondary to gunshot
wound, left antero-lateral thorax.cralaw:red
From the foregoing findings
of Dr. Lagonera as testified to by him and as stated in the foregoing
Autopsy
Report, the point of entry of the bullet is 51 and ¼ inches from
the heel which is higher by 3 and ¾ inches than the point of
exit
which is 47 and ¼ inches from the heel.cralaw:red
This would mean that
the accused was then in a higher elevation when he shot the
victim.
However, the evidence adduced shows that when the accused shot the
victim,
they were on the same level.chanrobles virtuallaw libraryred
Considering that both
the accused and the victim were facing each other and standing at the
same
level, the trajectory of the bullet that hit the victim should have
been
upward as according to the accused he tilted his gun which he held at
his
left wrist upward.cralaw:red
Considering the trajectory
of the bullet which is downward, the exit of which is 3 and ¾
inches
lower than its entry, the inescapable conclusion is that the victim
must
have been then in a kneeling or sitting position in front of the
accused
with the accused standing over him when the accused shot the victim.cralaw:red
x x
x
x x
x
x x x.[42]
Such being the case,
we cannot sustain even an incomplete self-defense in petitioner's
favor,
there being no clear and convincing showing that the victim was
attacking
him when he shot and killed him. The rule is established that
unlawful
aggression is a primordial element in self-defense.[43]
Its absence precludes a reduction of the penalty.chanrobles virtuallaw libraryred
However, petitioner
voluntarily surrendered. This was testified to by prosecution
witness
SPO2 Norberto Obrero.[44]
The Solicitor General concedes that this mitigating circumstance should
be appreciated in petitioner's favor.[45]
As to the award of damages,
P50,000.00 as civil indemnity for the death of the victim in homicide
is
correct.[46]
The grant of P192,000.00 for unearned income of the victim is also
supported
by the evidence, according to the formula set forth in People v.
Silvestre,[47]
The record shows that the victim was 32 years old and was earning at
least
P1,120.00 a month.[48]
Finally, the actual damages for funeral expenses should be reduced from
P131,000.00 to P54,500.00, as only the latter amount is supported by
receipts.[49]chanrobles virtuallaw libraryred
The crime of homicide
is punished by Article 249 of the Revised Penal Code with reclusion
temporal
(12 years and 1 day to 20 years). With the mitigating
circumstance
of voluntary surrender the penalty should be imposed in its minimum,
which
is, 12 years and 1 day to 14 years and 8 months.cralaw:red
Thus, petitioner should
serve an indeterminate sentence the maximum of which is anywhere within
one degree lower than the above prescribed penalty of reclusion
temporal;
hence, anywhere within prision mayor (6 years and 1 day to 12
years).
The maximum of the indeterminate sentence can be anywhere within the
properly
imposable penalty abovementioned, reclusion temporal in its minimum
period
(12 years and 1 day to 14 years and 8 months).[50]
WHEREFORE, the decision
and resolution of the Court of Appeals are MODIFIED, so as to reduce
the
penalty to an indeterminate sentence of from six (6) years and one (1)
day of prision mayor, as minimum, to twelve (12) years and one (1) day
of reclusion temporal, as maximum. The award of damages is
AFFIRMED
except that of actual damages for funeral expenses, which is hereby
reduced
to P54,500.00. Costs de oficio.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J.,
(Chairman),
Vitug, and Carpio, JJ.,
concur.
Ynares-Santiago, J.,
on leave.cralaw:red
____________________________
Endnotes:
[1]
Annex "E," Petition; Rollo, pp. 153-171.
[2]
Annex "G," Resolution; Rollo, pp. 236-237.
[3]
RTC Record, pp. 259-276.chanrobles virtuallaw libraryred
[4]
TSN, September 15, 1993, pp. 3-26; TSN, September 17, 1993, pp. 3-15.
[5]
Exhibit "B," Folder of Exhibits, p. 6.chanrobles virtuallaw libraryred
[6]
Exhibits "C," "C-1" to "C-8," Folder of Exhibits, pp. 7-14.
[7]
Exhibit "F," Folder of Exhibits, p. 19.chanrobles virtuallaw libraryred
[8]
TSN, September 17, 1993, pp. 16-29.
[9]
Exhibit "L," Folder of Exhibits, pp. 25-26.
[10]
TSN, November 5, 1993, pp. 3-25.chanrobles virtuallaw libraryred
[11]
Exhibit "A-2," Folder of Exhibits, pp. 2-5.
[12]
Exhibit "A-3," Folder of Exhibits, p. 2.
[13]
Exhibit "A-6," Folder of Exhibits, p. 3.
[14]
Exhibit "A-7," Folder of Exhibits, p. 3.
[15]
TSN, November 5, 1993, pp. 25-63.
[16]
Exhibits "M," "M-1," and "M-2," Folder of Exhibits, pp. 27-29.
[17]
Exhibits "O, " Folder of Exhibits, p. 31.
[18]
Exhibit "Q," Folder of Exhibits, p. 32.
[19]
Exhibit "R," Folder of Exhibits, p. 33.
[20]
Exhibits "S," and "S-1," Folder of Exhibits, p. 34.
[21]
Exhibit "T," Folder of Exhibits, p. 35.
[22]
Exhibit "V," Folder of Exhibits, p. 37.
[23]
Exhibit "W," Folder of Exhibits, p. 38.
[24]
TSN, April 29, 1994, pp. 5-23.
[25]
Exhibit "4," Folder of Exhibits, p. 52.
[26]
TSN, June 15, 1994, pp. 3-38.chanrobles virtuallaw libraryred
[27]
Exhibit "1," Folder of Exhibits, pp. 43-44.
[28]
Exhibit "2," Folder of Exhibits, pp. 45-50.
[29]
TSN, June 13, 1993, pp. 3-57.chanrobles virtuallaw libraryred
[30]
TSN, June 28, 1994, pp. 3-42.chanrobles virtuallaw libraryred
[31]
TSN, June 28, 1994, pp. 42-92; TSN, July 7, 1994, pp. 2-40.
[32]
Exhibit "19-a," Folder of Exhibits, p. 78.
[33]
Exhibit "19-b," Folder of Exhibits, p. 78
[34]
Exhibit "19-c," Folder of Exhibits, p. 78.
[35]
TSN, May 5, 1994, pp. 3-26.chanrobles virtuallaw libraryred
[36]
TSN, May 5, 1994, pp. 26-41.
[37]
TSN, Ibid, pp. 46-68.chanrobles virtuallaw libraryred
[38]
Exhibit "7," Folder of Exhibits, p. 55.
[39]
Petition for Review, pp. 15-17; Rollo, pp. 24-26.
[40]
Sec. 5 (g), Rule 135, Revised Rules of Court.chanrobles virtuallaw libraryred
[41]
People v. Cahindo, 266 SCRA 554 (1997); People v. Libed, 14 SCRA 410
(1965).
[42]
Amended Decision, pp. 14-15; Records, pp. 272-273.chanrobles virtuallaw libraryred
[43]
U.S. v. Navarro, 7 Phil. 713 (1907); U.S. v. Carrero, 9 Phil. 544
(1908).
[44]
TSN, November 5, 1993, pp. 35-57.chanrobles virtuallaw libraryred
[45]
Respondent's Memorandum, pp. 16-17.
[46]
People v. Sison, 189 SCRA 643 (1990).
[47]
307 SCRA 68 (1999).chanrobles virtuallaw libraryred
[48]
As stated by the Solicitor General, the formula and its application are:chanroblesvirtuallawlibrary
Net
Earning Life
Expectancy
Gross
Living
Capacity
=
(2/3 [80 - age at death])
X
Annual
-
Expenses
Income
(GAI) (50% of GAI)chanrobles virtuallaw libraryred
The
evidence presented shows that the victim was earning P1,120.00 a month
and he died at the age of thirty two (32). Based on the above
formula,
his earning capacity would be:chanroblesvirtuallawlibrary
Net
Earning Capacity
=
2/3 (80 - 32) X (12xP1,120 - 12xP560)
=
32
X P6,720
= P215,040.
Respondent's
Memorandum, p. 18; Rollo, p. 472.chanrobles virtuallaw libraryred
[49]
Exhibits "C-2," "C-3," "C-4," "C-7" and "C-8," Folder of Exhibits, pp.
8-10, 13-14.
[50]
Sec. 1, Indeterminate Sentence Law, Act No. 4103 as amended by Act No.
4225. |