SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
139692
January 15, 2004
-versus-
JESSIELITO BADAJOS
Y SUMBIDAN ALIAS "TOTO"
AND FRETCHIE SANCHEZ
Y AMPARO (AT LARGE),
Accused.
JESSIELITO BADAJOS
Y SUMBIDAN ALIAS "TOTO",
Appellant.
D E C I S I O N
CALLEJO,
SR., J.:chanrobles virtual law library
This is an appeal from
the Decision[1]
of the Regional Trial Court, Branch 4, Butuan City, convicting the
appellant
Jessielito Badajos of murder, sentencing him to suffer reclusion
perpetua
and directing him to pay damages to the heirs of the victim Alfredo
Donque. The Indictment
On September 8, 1997,
an Information was filed charging Jessielito Badajos and Fretchie
Sanchez
y Amparo of murder. The accusatory portion reads:
That at more or less
12:00 o’clock in the evening of July 21, 1997 at P-12, Brgy. Los
Angeles,
Butuan City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating together and
mutually helping one another, taking advantage of their superior
strength
and with treachery, with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and shot one Alfredo Donque
hitting the latter on his neck, right hand and right shoulder which
caused
his instantaneous death.[2]
On November 12, 1997,
the accused, assisted by counsel, was arraigned and entered a plea of
not
guilty. Sanchez remained at large.
The Case for
the
Prosecution
The first and principal
witness of the prosecution was Rodolfo Matinig, a 14-year-old
out-of-school
youth. He testified that he finished only Grade III and stopped
attending
school in 1998. In the meantime, Alfredo Donque hired him as caretaker
of the duck farm owned by Marcelino Ipes located at Purok II, Barangay
Los Angeles, Butuan City.cralaw:red
At about 12:00 midnight
on July 21, 1997, Matinig and Donque went to the small hut in the duck
farm. While they were watching the ducks, Jessielito "Toto" Badajos,
Fretchie
Sanchez and Jerry Lamosao arrived. At that time, Matinig did not know
Sanchez
and Jerry Lamosao. Badajos then asked Donque for duck eggs, but the
latter
replied that there were none. He explained that he had already sold the
duck eggs he had collected earlier that afternoon. The three men then
left.
When they returned, Badajos was already armed with a gun. Donque was
seated
about two-and-a-half meters away from him. Badajos then shot Donque
four
times. Donque, despite his wounds, still managed to flee towards the
ricefield.
Matinig attempted to escape, but Badajos pointed the gun at him and
grabbed
him. Sanchez forthwith wrested the gun from Badajos, and Matinig
managed
to free himself. He ran and rode on his bicycle, rushing to the house
of
Mamer Pandac, about 25 meters away from the place where Donque was
shot.
He told Pandac, "Donque, my companion was shot." The two of them peeped
through the window and saw Badajos, Sanchez and their companion leave
the
scene. Matinig and Pandac found Donque sprawled on the ricefield,
already
dead. Matinig then reported the incident to Donque’s parents-in-law. He
testified that he came to know Sanchez’ name when he was interviewed by
an announcer of the "Bombo Radio."
Madelyn Donque, the
victim’s widow, testified that it was Rodolfo who informed her that her
husband was already dead. When she asked Matinig who killed her
husband,
he replied that it was Badajos. Madelyn also testified that she and her
husband had a nine-year-old son. She spent P5,000 for the embalment and
the coffin; P9,000 for the niche; P400.00 for flowers; and P3,000 for
the
wake. They also spent money for transportation. Madelyn also testified
that the victim had a monthly salary of P1,000.00.cralaw:red
City Health Medical
Officer Dr. Jesus Chin Chiu testified that he performed an autopsy on
Donque’s
cadaver. He prepared and signed a Necropsy Report containing the
following
findings:
FINDINGS:
- Entrance wound measuring
1 inch by ¾ inch at (R) side of anterior neck about 2 inches
from
the midline, no exit wound.cralaw:red
- Entrance wound (R)
upper arm ½ inch by ½ inch in measurement.cralaw:red
- Slug recovered embedded
above the left clavicle.cralaw:red
CAUSE OF DEATH:
Shock due to gunshot
wound.[3]
Dr. Chiu noticed gunpowder
burns on the victim’s body. He also signed the victim’s death
certificate.[4]
Cyrille Konahap testified
that he took pictures of the victim, sprawled in the ricefield already
dead.[5]
The Case for
the
Accused
Badajos denied shooting
and killing Donque. He claimed that Fretchie Sanchez was the culprit.
He
testified that he made a living as a farmer. At 6:00 p.m. on July 21,
1997,
he, along with Sanchez and Jerry Lamosao had a drinking spree in the
Palaca’s
Store at Sitio Dumognay, Los Angeles, Butuan City. By 7:00 p.m., after
they had already drank several bottles of beer, they went to their
respective
houses to have dinner. They agreed to go back to Palaca’s Store to
continue
their drinking spree.chanrobles virtuallaw libraryred
At about midnight, Sanchez
decided to buy "cracked duck eggs" from Donque. Sanchez and Lamosao
entered
the hut which was covered with empty sacks on its sides. He waited for
his companions by the roadside, about 8 meters away from the hut.
However,
Sanchez failed to get any duck eggs from Donque. He grabbed Donque by
the
collar and pulled him outside the hut. Lamosao followed. Sanchez then
shot
Donque four (4) times. Two other male persons fled from the scene.
Sanchez
reported the incident to SPO2 Benjamin Liwanag, a policeman of the RTR
Station. At 8:00 p.m. on July 22, 1997, Badajos reported the shooting
to
Mario Romero, a policeman of Ampaoan. Both policemen conducted an
investigation
at the scene of the shooting.cralaw:red
Carlito Dumas, also
a farmer, corroborated Badajos’ testimony. He testified that on July
19,
1997 Donque had agreed to sell 500 duck eggs to him for P2.00 a piece.
The duck eggs were for his son, Benjamin, who was engaged in the
business
of raising ducks in Gigaquit, Surigao. On July 20, 1997, a Saturday, he
paid Donque for the eggs and was to take delivery thereof at 11:00 p.m.
the next day. On July 21, 1997, he and his friend Rolando Tiape slept
in
the house of his cousin, Godoberto Dumas until 9:00 p.m. They had
agreed
to leave together for Gigaquit the next day. At 11:00 p.m., they
proceeded
to Donque’s hut, but were told that there were only 250 eggs available.
Donque advised him to wait until 4:00 a.m. as the ducks would lay more
eggs. He agreed and waited at Donque’s hut. Carlito, Tiape and Donque,
were the only persons in the hut.cralaw:red
Sanchez and Lamosao
arrived. The appellant stood by the roadside, about 8 meters away.
Lamosao
asked Donque for duck eggs but he told Lamosao that he had already sold
the available duck eggs to Dumas. Sanchez then asked Donque for the
live
ducks but Donque refused to give them up. Sanchez grabbed Donque by the
shirt collar and pulled him outside the hut. Lamosao followed suit. The
appellant shouted, "Don’t touch him!" Nevertheless, Sanchez shot Donque
four (4) times. Petrified, he and Tiape fled from the scene and rushed
back to the house of Godoberto, leaving the 250 duck eggs he had bought
from Donque in the hut. He told Godoberto that Sanchez had shot Donque
to death.chanrobles virtuallaw libraryred
The next day, July 22,
1997, Carlito Dumas left for Gigaquit. He told his son that the duck
eggs
were unavailable. He remained in Gigaquit until the fiesta on August
28,
1997. When his wife arrived for the fiesta, he asked if charges were
filed
against anyone for the death of Donque. His wife replied that Badajos
was
charged for the crime. When he expressed disgust, his wife told him
that
he cannot do anything because Badajos was already in the custody of
SPO2
Benjamin Liwanag. When his wife returned to Butuan City, he remained in
Gigaquit until July 2, 1998 when Victorio, Badajos’ father, fetched him
to testify. He did not report the incident to the police authorities
because
he did not want to get involved in the killing.cralaw:red
The trial court thereafter
rendered judgment convicting Badajos. The decretal portion of the
decision
reads:
WHEREFORE, the Court
finds accused JESSIELITO BADAJOS Y SUMBIDAN, ALIAS "TOTO" guilty beyond
reasonable doubt of the crime of Murder and is sentenced to the penalty
of reclusion perpetua together with the accessory penalties provided by
law. He shall be entitled with the full time during which he has
undergone
preventive imprisonment, if he agrees voluntarily in writing to abide
by
the same disciplinary rules imposed upon convicted prisoners,
otherwise,
he shall be credited in the service thereof with four-fifths of the
time
during which he has undergone preventive imprisonment.chanrobles virtuallaw libraryred
Accused Badajos is ordered
to indemnify the heirs of the deceased the amount of Fifty Thousand
(P50,000.00)
Pesos. In addition, he is also ordered to pay the heirs of the deceased
the amount of One Hundred Forty-Four Thousand P144,000.00) Pesos
representing
loss of earnings and the amount of Twelve Thousand (P12,000.00) Pesos
representing
his regular monthly commission for every egg sold as well as the sum of
Nine Thousand Three Hundred Twenty-Six (P9,326.00) Pesos representing
actual
damages. The accused is also ordered to pay moral damages in the sum of
Twenty Thousand Pesos (P20,000.00).cralaw:red
On the other hand, it
is not imperative that the case against accused Fretchie Sanchez be
sent
to the files to await for his arrest. There is nothing in the evidence
adduced by the prosecution to implicate him. On the contrary, he
prevented
the possible death of prosecution witness Rodolfo Matinig by taking
away
the gun from Badajos who was at the time already pointing it to the
head
of Matinig.cralaw:red
IT IS SO ORDERED.[6]
On appeal, Badajos,
now the appellant, insists that the trial court should have acquitted
him
for the prosecution’s failure to prove his guilt for the crime charged
beyond reasonable doubt. He concluded that:
THE COURT A QUO
GRAVELY
ERRED IN ENTIRELY RELYING UPON THE UNCORROBORATED AND CONTRADICTED
TESTIMONY
OF PROSECUTION WITNESS RODOLFO MATINIG Y CUTAO FOR THE CONVICTION OF
THE
ACCUSED-APPELLANT.
THE COURT A QUO
GRAVELY
ERRED IN TOTALLY IGNORING THE UNREBUTTED TESTIMONY OF DEFENSE WITNESS
CARLITO
DUMAS Y ATA.
THE COURT A QUO
GRAVELY
ERRED IN CONVICTING THE ACCUSED-APPELLANT NOTWITHSTANDING THAT THE
PEOPLE’S
EVIDENCE FAILED TO OVERCOME THE PRESUMPTION OF INNOCENCE OF THE
ACCUSED-APPELLANT.[[7]
Anent the first assigned
error, the appellant posits that the testimony of the prosecution
witness,
Rodolfo Matinig is uncorroborated. Furthermore, the appellant asserts,
despite the fact that Lamosao was listed in the Information, the
prosecution
failed to present him as a witness. This gave rise to the presumption
that
his testimony would have been adverse to the prosecution had he
testified.chanrobles virtuallaw libraryred
The appellant insists
that Matinig admitted on cross-examination that he implicated the
appellant
for the killing of Donque because (a) he was told to testify against
the
appellant; and (b) he was afraid to implicate the real killer –
Fretchie
Sanchez – because the latter was at large.cralaw:red
We are not impressed
by the appellant’s arguments. The fact that Matinig’s testimony was not
corroborated by any other witness is of no moment. It is axiomatic that
the testimonies of witnesses are weighed, not numbered, and the
testimony
of a single witness may suffice for conviction if found trustworthy and
reliable.[8]
There is no law which requires that the testimony of a single witness
needs
corroboration except where the law expressly mandates such
corroboration.
In this case, Matinig, who was barely 14 years old and had finished
only
the third grade, testified how the appellant shot the victim four
times.
He narrated how the appellant, after shooting and killing the victim,
held
him and poked a gun at him when he attempted to flee from the scene,
thus:
PROSECUTOR ABUGHO:
Q Dolfo, you said that
Toto Badajos shot Alfredo Dunque (sic). Where were you when Toto
Badajos
shot Alfredo Dunque (sic)?
A I was there with him.chanrobles virtuallaw libraryred
COURT:
Q You mean you were
with Alfredo Dunque (sic) at the time he was shot by Toto Badajos? Is
that
what you mean?
A Yes, sir.cralaw:red
PROSECUTOR ABUGHO:
Q How many times did
Toto Badajos shoot Alfredo Dunque (sic)?
A Four (4) times.cralaw:red
Q How far were you from
Toto Badajos when he shot Alfredo Dunque (sic)?
(Witness indicating
the distance between him and Fiscal Abugho which is about two and
one-half
(2-1/2 meters.)
Q What was the position
of Alfredo Dunque (sic) when he was shot by Toto Badajos?
ATTY. ROSALES:
No basis, Your Honor.cralaw:red
PROSECUTOR ABUGHO:
He was there, Your Honor.cralaw:red
ATTY. ROSALES:
No basis, Your Honor.chanrobles virtuallaw libraryred
COURT:
He was there. I will
allow the question. Answer the question.cralaw:red
WITNESS:
A He was seated.cralaw:red
PROSECUTOR ABUGHO:
Q When he was shot four
(4) times by Toto Badajos, what did Alfredo Dunque (sic) do?
A He ran away.cralaw:red
Q How about you, what
did you do?
A I was unable to run
because Toto Badajos held me.cralaw:red
Q What else did Toto
Badajos do to you?
A He pointed his gun
at me.cralaw:red
Q What happened when
he pointed his gun at you?
A Fretchie wrested the
gun from him.cralaw:red
Q Who is this Fretchie?
A The companion of Toto
Badajos.cralaw:red
Q What happened when
Fretchie grabbed the gun of Toto Badajos? What happened to you?
A After he wrested the
gun from Toto Badajos I was able to free myself so I ran away.cralaw:red
Q Where did you go?
A I went to the house
of Mamer.cralaw:red
Q What is the family
name of this Mamer?
A I do not know his
family name, sir.cralaw:red
Q From the place where
you were previously held by Toto Badajos to the house of Mamer, can you
determine the distance, Mr. Witness?
(Witness indicating
the distance from the witness stand to the building under construction
of the GSIS.)
PROSECUTOR ABUGHO:
Which we estimate, Your
Honor, to be more or less sixty (60) meters.chanrobles virtuallaw libraryred
ATTY. ROSALES:
I cannot estimate.cralaw:red
COURT:
How far is that?
ATTY. ROSALES:
To be sure he was referring
to the building under construction of the GSIS.cralaw:red
WITNESS:
Up to that coconut tree
there.cralaw:red
(Witness referring to
the perimeter fence of the Hall of Justice.)
COURT:
About twenty-five (25)
meters, more or less.cralaw:red
PROSECUTOR ABUGHO:
Q Now, you said you
ran to the house of Mamer.cralaw:red
What did you do in the
house of Mamer?
A I roused them up.cralaw:red
Q For what purpose?
A I roused them up because
I wanted to ask help from them.cralaw:red
Q Did Mamer help you?
A Yes, sir.cralaw:red
Q How did Mamer help
you?
A He let me in in his
house.cralaw:red
Q What, if any, did
you tell to Mamer?
A I told him, "Nong,
my companion was shot."
Q When you told that
to Mamer, what did he do?
A We peeped through
the window and looked at Toto Badajos.cralaw:red
Q Did you still see
Toto Badajos?
ATTY. ROSALES:
Leading question, Your
Honor.cralaw:red
COURT:chanrobles virtuallaw libraryred
Leading.cralaw:red
PROSECUTOR ABUGHO:
Q What happened when
you and Mamer peeped through the window looking for Badajos?
A We saw that they left
the place.cralaw:red
Q When they left the
place, what did you do?
A We looked for Alfredo
Dunque (sic).cralaw:red
Q Did you find Alfredo
Dunque (sic)?
A Yes, sir.cralaw:red
Q Where?
A In the ricefield.cralaw:red
Q What happened to him?
A He was already dead.cralaw:red
Q After finding Dunque
(sic), what did you do thereafter?chanrobles virtuallaw libraryred
A I got a bike and immediately
went to the house of his parents-in-law.cralaw:red
Q What was your purpose?
A To inform them.[9]
When the public prosecutor
asked him to point to and identify the perpetrator of the crime,
Matinig
spontaneously and unerringly pointed to the appellant.cralaw:red
PROSECUTOR ABUGHO:
Q How did he die?
A He was shot.cralaw:red
Q Who shot him?
A Toto Badajos.cralaw:red
Q If this Toto Badajos
is in the courtroom, can you identify him?
A Yes, sir. I can identify
him.cralaw:red
Q Will point him before
the Court?
(Witness was allowed
to get down from the witness chair to tap the should [sic] of the
person
alleged to be Toto Badajos.)
A This is Toto Badajos.cralaw:red
(Witness patting the
shoulder of accused Jessielito Badajos y Sumbidan.)
COURT:
Q Are you Jessielito
Badajos y Sumbidan?
ACCUSED:
A Yes, sir.[10]
It bears stressing that
the trial court gave credence and full probative weight to Matinig’s
testimony.
The settled rule is that the Court will not interfere with the findings
of the trial court and its judgment in determining the credibility of
the
witnesses, unless there appears in the record some fact or circumstance
of weight and influence which has been overlooked or the significance
of
which has been misinterpreted.[11]
We have painstakingly reviewed the records and we find no reason to
deviate
from the findings of the trial court and its assessment of the
probative
weight of Matinig’s testimony.cralaw:red
The fact that the prosecution
did not call Lamosao to testify is of no moment. The public prosecutor
has the discretion as to the witnesses he will present as well as the
course
of presenting the case for the prosecution. The prosecution is not
burdened
to present all eyewitnesses of the crime on the witness stand during
the
trial. The testimony of only one eyewitness may suffice so long as it
is
credible and trustworthy. On the other hand, if Lamosao’s testimony
would
corroborate the appellant’s version of the story, considering that the
latter was present when Donque was shot, it was the appellant who
should
have called him to the witness stand.cralaw:red
With regard to the absence
of motive, well-entrenched in our jurisprudence is the rule that where
there is no evidence that the principal witnesses of the prosecution
were
actuated by ill-motives, their testimony is entitled to full faith and
credit.[12]
The appellant admitted testifying that he has no axe to grind against
Matinig,
who was a mere worker employed by Donque. Matinig testified that he was
initially afraid to testify for the prosecution because he was afraid
of
Sanchez, who was still at large, thus:
ATTY. ROSALES:chanrobles virtuallaw libraryred
Q Now, you know that
this person whom you said you were told was Fretchie was a companion of
yours, or co-resident of yours in Los Angeles, is that correct?
A No, sir. He is not
our companion.chanrobles virtuallaw libraryred
Q But he is residing
in Los Angeles?
A Yes, sir.cralaw:red
Q And you know that
he is at large, not yet arrested?
A That is correct, sir.cralaw:red
Q And you know that
he is holding a gun?
A Yes, sir.cralaw:red
Q And, of course, you
are afraid of Fretchie?
A Yes, sir, I’m afraid.cralaw:red
Q And that is the reason
why you were reluctant to come to this Honorable Court when you were
subpoenaed
to come, is that correct?
PROSECUTOR ABUGHO:
We object, Your Honor,
again, the same ground, and this is a new matter, Your Honor.cralaw:red
COURT:
As the Court said, that
was not brought out in the direct, in the re-direct and therefore that
question will have no basis.cralaw:red
ATTY. ROSALES:
Okay, we have no further
question, Your Honor.[13]
The credibility of Matinig’s
testimony, that he saw the appellant shoot the victim to death, and the
probative weight thereof were not denigraded by his answers to the
questions
of the appellant’s counsel on cross-examination, thus:
PROSECUTOR ABUGHO:
Your Honor, can we approach
the Bench?
(Counsel approaching
the Bench)
COURT:
After all, it would
mislead the Court also on how to appreciate the testimony.cralaw:red
What was the question
that he answered by "wala"?
(Stenographer reading
the question:)
"Q You answered awhile
ago that you said "yes" when you were asked or when you were sworn as a
witness because you were told. Do I understand that you were told about
the incidents involving the matters you are testifying about now?"chanrobles virtuallaw libraryred
(After the Court’s interpretation)
WITNESS:
A I was told.cralaw:red
ATTY. ROSALES:
Q In other words, it
is now clear that you were only told on what you are about to tell the
Court this morning?
A Yes, sir.cralaw:red
ATTY. ROSALES:
In view of the answer
of this witness, Your Honor please, we terminate our cross-examination.[14]
The appellant would
like the Court to believe that by answering "Yes, sir," Matinig
admitted
that he was merely told about the matters he testified on before the
trial
court; hence, did not testify on matters of his personal knowledge. We
are not convinced.cralaw:red
Obviously, Matinig misunderstood
the questions of the appellant’s counsel. The first question was
premised
on and had reference to Matinig’s answers to the previous questions of
said counsel, that he was told of the nature and importance of an oath
before he testified. Matinig was questioned, thus:
Q Whether or not this
witness is unschooled, is illiterate, is young, it will be the Court
who
will assess the weight of his testimony taking into account those
circumstances.cralaw:red
PROSECUTOR ABUGHO:
Thank you, Your Honor.cralaw:red
COURT:
But then, when there
is an objectionable question you should rise and make your objection so
that the Court can make its ruling.cralaw:red
ATTY. ROSALES:
May I continue, Your
Honor.chanrobles virtuallaw libraryred
COURT:
Continue.cralaw:red
ATTY. ROSALES:
Q You answered awhile
ago that you said "yes" when you were asked or when you were sworn as a
witness because you were told. Do I understand that you were told about
the incidents involving the matters you are testifying about now?
PROSECUTOR ABUGHO:
Objection, Your Honor.
And, I am now objecting because the phrase "you were told" is not
relevant
to the question that is asked. It is misleading.cralaw:red
ATTY. ROSALES:
It is not misleading,
your honor. It is a clarificatory question of the answer of the witness.cralaw:red
PROSECUTOR ABUGHO:
Because the question
is phrased that way that this witness was told of what happened to him,
Your Honor, which is very vague.cralaw:red
ATTY. ROSALES:
No. What had happened
to him. He was told of the incidents that he is now about to testify.cralaw:red
COURT:
But you are assuming
there, pañero.cralaw:red
ATTY. ROSALES:
Yes, Your Honor.cralaw:red
COURT:
You are assuming there,
pañero, you are assuming that that is his meaning. So, we will
ask
him.cralaw:red
Q What do you mean by
that phrase?
That question will be
more in consonance with justice.chanrobles virtuallaw libraryred
This is a young fellow,
this is unschooled.cralaw:red
ATTY. ROSALES:
Yes, Your Honor. But
we must consider the duties of a defense or a cross-examiner.cralaw:red
COURT:
Exactly.[15]
Matinig answered the
question: "I was not told what to say."[16]
However, when the counsel of the appellant objected to the translation
made by the interpreter, the trial court allowed the question to be
propounded
anew to Matinig, and this time he answered that he was so told. The
confusion
was exacerbated by the difficulty of the public prosecutor and the
counsel
of the appellant in framing their questions, and by the fact that the
next
question of the latter was based on the wrong premise, that Matinig was
merely told of what he was about to narrate before the court.cralaw:red
PROSECUTOR ABUGHO:
Your Honor, can we approach
the Bench?
(Counsel approaching
the Bench)
COURT:
After all, it would
mislead the Court also on how to appreciate the testimony.cralaw:red
What was the question
that he answered by "wala"?
(Stenographer reading
the question:)
"Q You answered awhile
ago that you said "yes" when you were asked or when you were sworn as a
witness because you were told. Do I understand that you were told about
the incidents involving the matters you are testifying about now?"
(After the Court’s interpretation)chanrobles virtuallaw libraryred
WITNESS:
A I was told.cralaw:red
ATTY. ROSALES:
Q In other words, it
is now clear that you were only told on what you are about to tell the
Court this morning?
A Yes, sir.cralaw:red
ATTY. ROSALES:
In view of the answer
of this witness, Your Honor please, we terminate our cross-examination.[17]
Matinig clarified his
answer to the question of the counsel for the appellant on
cross-examination
when he testified:
COURT:
Your duty in redirect
is to reconcile what apparently are conflicting testimonies of the
witness.
You frame your question in that –
PROSECUTOR ABUGHO:
Q Mr. Witness, awhile
ago, you testified that you saw Toto Badajos shot Alfredo Dunque (sic).
My question is, did somebody tell you that you have to testify that
Toto
Badajos shot Alfredo Dunque (sic)?chanrobles virtuallaw libraryred
ATTY. ROSALES:
We object to the question,
Your Honor please. The question is improper. That is not the issue in
the
case.cralaw:red
COURT:
It may not be well-framed
but it is not improper.cralaw:red
Allowed. Answer the
question.cralaw:red
WITNESS:
A No one.cralaw:red
PROSECUTOR ABUGHO:
Q So, can you explain
to us when you say that somebody told you?
COURT:
You know, your witness
is not intelligent.cralaw:red
PROSECUTOR ABUGHO:
That’s why, Your Honor.chanrobles virtuallaw libraryred
COURT:
And you try to frame
your question in a way that you are just confusing him. Anyway, the
court
is after the truth.cralaw:red
Q When you testified
that Toto Badajos shot Alfredo Dunque (sic), were you telling a lie or
were you telling the truth?
A It was the truth.cralaw:red
PROSECUTOR ABUGHO:
That is all, Your Honor.[18]
The appellant’s denial
of the crime charged and pointing to Sanchez as the culprit cannot
prevail
over the positive and credible testimony of Matinig that it was the
appellant
who shot the victim.[19]
The trial court cannot
be faulted for not giving credence and full probative weight to the
testimony
of the appellant and Carlito Dumas. The appellant fled from the scene
and
left his residence after the killing. He did not receive the notice to
file his counter-affidavit during the preliminary investigation because
he was nowhere to be found.[20]
It was only on September 22, 1997 that the appellant finally
surrendered
to the Butuan City police station.[21]
Moreover, it was only when he testified that the appellant claimed for
the first time that Sanchez killed Donque.chanrobles virtuallaw libraryred
The trial court erred
in holding that treachery was attendant in the commission of the crime.
For treachery to be appreciated, there must be proof beyond reasonable
doubt of the concurrence of the following: (1) the employment of means
of execution that gives the person attacked no opportunity to defend
himself
or retaliate; and (2) the means of execution was deliberately or
consciously
adopted.[22]
While the first condition is attendant in this case, the second
condition
was not proven by the prosecution. There is no evidence that the
appellant
made some preparation to kill the victim in such a manner as to insure
the execution of the crime or to make it impossible or difficult for
Donque
to defend himself or retaliate.[23]
The appellant shot the victim when he was peeved by Donque’s failure to
give him duck eggs. In fine, the shooting was perpetrated at the spur
of
the moment. Jurisprudence has it that a killing done at the spur of the
moment is not treacherous.[24]
Hence, absent clear and convincing proof of treachery, the appellant
can
only be convicted of homicide.[25]
Under Republic Act No.
8294, the use of an unlicensed gun to commit homicide is a special
aggravating
circumstance. The culprit’s lack of a license for the gun is an
essential
element of such circumstance, which must be alleged in the Information
as mandated by Section 8, Rule 110 of the Revised Rules of Criminal
Procedure.[26]
However, there is no allegation in the Information that the appellant
had
no license to possess the firearm he used to kill Donque. Thus, the
appellant’s
use of an unlicensed firearm cannot be considered against him. On
record,
the appellant voluntarily surrendered to the Butuan City police
station.
Hence, he is entitled to the mitigating circumstance of voluntary
surrender.cralaw:red
Under Article 249 of
the Revised Penal Code, homicide is punishable by reclusion temporal.
Taking
into account the mitigating circumstance of voluntary surrender, and
that
no aggravating circumstance was attendant to the commission of the
crime,
the maximum penalty of the Indeterminate Sentence Law should be imposed
in its minimum period. Applying the Indeterminate Sentence Law, the
minimum
of the imposable penalty shall be taken from the full range of the
penalty
next lower in degree, or more specifically, prision mayor.chanrobles virtuallaw libraryred
The Court awarded P144,000.00
for actual damages, P12,000.00 for his lost earnings and P9,326.00 for
the burial and wake despite the absence of any documentary evidence to
prove the same. The award shall be deleted. However, the heirs are
entitled
to temperate damages in the amount of P25,000.00 in lieu of actual
damages
for burial and wake expenses.[27]
The award of P50,000.00 for civil indemnity is in accord with existing
jurisprudence.[28]
As to the award of moral damages, the same is increased to P50,000.00,
conformably to current jurisprudence.[29]
The heirs are entitled to P25,000.00 as exemplary damages.[30]
IN THE LIGHT OF ALL
THE FOREGOING, the Decision of the Regional Trial Court, Branch 4,
Butuan
City, is AFFIRMED with the MODIFICATION that instead of murder, this
Court
finds appellant Jessielito "Toto" Badajos, guilty beyond reasonable
doubt
of HOMICIDE. There being a mitigating circumstance in favor of the
appellant
and no aggravating circumstance, an indeterminate penalty of from eight
(8) years of prision mayor, in its medium period as minimum, to
fourteen
(14) years and eight (8) months of reclusion temporal, in its minimum
period,
as maximum is imposed upon him. He is ordered to pay to the heirs of
the
victim Alfredo Donque P50,000.00 as civil indemnity; P50,000.00 as
moral
damages; P25,000.00 as temperate damages; and P25,000.00 as exemplary
damages.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman), Quisumbing,
Austria-Martinez, and Tinga, JJ.,
concur.
____________________________
Endnotes:
[1]
Penned by Judge Cipriano B. Alvizo, Jr.
[2]
Records, p. 1.chanrobles virtuallaw libraryred
[3]
Exhibit "C," Folder of Exhibits.
[4]
Exhibit "B," id.chanrobles virtuallaw libraryred
[5]
Exhibits "A," "A-1" and "A-2," id.
[6]
Records, pp. 79-80.
[7]
Rollo, pp. 44-45.chanrobles virtuallaw libraryred
[8]
See People v. Pascual, 331 SCRA 252 (2000).
[9]
TSN, 2 March 1998, pp. 8-11.
[10]
Id. at 7.chanrobles virtuallaw libraryred
[11]
See People v. Mustapa, 352 SCRA 252 (2001).
[12]
People v. Nicholas, 370 SCRA 473 (2001).
[13]
TSN, 2 March 1998, p. 33.
[14]
Id. at 26.chanrobles virtuallaw libraryred
[15]
Id. at 21-22.
[16]
Id. at 23.
[17]
Id. at 26.
[18]
Id. at 28-29.chanrobles virtuallaw libraryred
[19]
People v. Toledo, Sr., 357 SCRA 649 (2001).
[20]
Records, pp. 3-4.
[21]
Id. at 14.chanrobles virtuallaw libraryred
[22]
People v. Enriquez, 357 SCRA 269 (2001).
[23]
People v. Mazo, 367 SCRA 462 (2001).
[24]
Ibid.chanrobles virtuallaw libraryred
[25]
See People v. Doctolero, Sr., 363 SCRA 404 (2001).
[26]
SEC. 8. Designation of the offense.- The complaint or information shall
state the designation of the offense given by the statute, aver the
acts
or omissions constituting the offense, and specify its qualifying and
aggravating
circumstances. If there is no designation of the offense, reference
shall
be made to the section or subsection of the statute punishing it.
[27]
People v. Abrazaldo, G.R. 124392, February 7, 2003.chanrobles virtuallaw libraryred
[28]
People v. Delim, G.R. No. 142773, January 28, 2003.
[29]
People v. Caballero, G.R. Nos. 149028-30, April 2, 2003.
[30]
Talay, et al. v. People, G.R. No. 119477, February 27, 2003. |