THIRD DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
144156
March 20, 2003
-versus-
PAQUITO ROMERO ALIAS
"ADA,"
Appellant.
D E C I S I
O N
CORONA,
J.:chanroblesvirtuallawlibrary
Before us on appeal is
the decision[1]
of the Regional Trial Court of Romblon, Branch 81, in Criminal Case No.
2158, finding herein appellant, Paquito Romero, alias "Ada," guilty of
the crime of murder and sentencing him to suffer the penalty of
reclusion
perpetua and to indemnify the heirs of the victim, Augusto Ruba, in the
amount of P50,000.chanrobles virtuallaw libraryred
On May 25, 1999, the
appellant, Paquito Romero alias "Ada," was charged with the crime of
murder
of Augusto Ruba in an Information which reads:
UNDERSIGNED accuses
PAQUITO ROMERO, a.k.a. "Ada," of the heinous crime of MURDER as
penalized
under Republic Act 7659, committed as follows:
That on or about the
18th day of March, 1999, at around 8:00 o'clock in the evening, in
sitio
Libo-o, barangay Taclobo, municipality of San Fernando, province of
Romblon,
Philippines, and within the jurisdiction of this Honorable Court, the
said
accused, with intent to kill, did then and there, by means of treachery
and with evident premeditation, willfully, unlawfully and feloniously
attack,
assault and strike with a blunt instrument one AUGUSTO RUBA, inflicting
upon the latter mortal injury on his head which caused his death.cralaw:red
CONTRARY TO LAW.[2]chanrobles virtuallaw libraryred
When arraigned on July
27, 1999, appellant Romero, assisted by counsel, pleaded "not guilty"
to
the charge of murder. However, on August 26, 1999, the appellant
proposed to change his plea of not guilty to the charge of murder to a
plea of guilty to the lesser offense of homicide. After both
parties
agreed on the conditions for the new plea, the trial court issued an
order,
the pertinent portion of which reads as follows:
xxx
xxx xx
When this case was called
for initial reception of evidence for the prosecution, the accused
Paquito
Romero, a.k.a. "Ada", assisted by PDO Atty. Cesar M. Madrona, withdrew
his earlier plea of not guilty to the charge of murder and when the
accused
was re-arraigned, he pleaded guilty to the lesser offense of homicide
which
the prosecution accepted without objection with the following
conditions:
(1) that there will be no modifying circumstances; (2) that the father
of the deceased shall be reimbursed for his actual expenses in the
total
sum of P30,000.00 aside from his liability for P50,000.00 as civil
indemnity
for the death of his victim; and (3) that the Court shall take into
consideration
the penalty of prision mayor or six (6) years and one (1) day to twelve
(12) years as recommended by trial prosecutor Joel A. Sy.cralaw:red
WHEREFORE, in view of
the foregoing, this case is deemed submitted for decision.chanrobles virtuallaw libraryred
Before the trial court
rendered a decision, the prosecution, on August 30, 1999, moved for the
re-opening of the case on the ground that the appellant violated one of
the above conditions when he refused to pay the amount of P30,000 to
the
father of the victim. Instead, the appellant proposed to pay the
lesser amount of P20,000, conditioned on his being set free upon
payment
thereof. The trial court granted the motion of the prosecution
and
ordered the commencement of trial.[3]
The prosecution presented
its first witness, Rodolfo Moreno. According to Moreno, at around past
5:00 p.m. of March 18, 1999, he was drinking tuba with the victim,
Augusto
Ruba, in his home in Barangay Taclobo, San Fernando, Romblon. At
about 7:00 p.m., they went to the house of the brother of the
appellant,
Edresito "Kito" Romero, where the three of them drank several bottles
of
beer and gin. At this point, the appellant arrived and drank two
bottles of beer before he decided to leave. Not long after, Moreno and
the victim also left and proceeded to the trail leading to the national
road.[4]chanrobles virtuallaw libraryred
At about 8:00 p.m.,
while they were walking along the national road, Moreno and the victim
saw herein appellant Romero in a squatting position. His left
hand
was at his back while his right hand was on his side with his fist
slightly
clenched. In that position, appellant looked as if he was
preparing
to lunge at the victim. Moreno clearly saw appellant due to the
illumination
coming from the fluorescent light from the post which was only two
meters
from the appellant.[5]
Smiling, the victim told Moreno to walk behind him.[6]
As the victim passed, the appellant suddenly stood up and struck him at
the back of the head with an air pump.[7]
After being hit, the victim fell frontally to the ground ("sumubsob").
Moreno ran to his house and hid there. At about 5:00 a.m. of
March
19, 1999, he went to the house of Climaco Ruba, the father of the
victim,
and related what happened to his son.[8]
SPO1 Jesus Protacio
Meneses testified that he was the officer assigned to investigate the
crime.
He went to the hospital on March 25, 1999 and conferred with the
victim's
attending physician, Dr. Ramon Villanueva, who informed him that the
victim's
condition was critical. SPO1 Meneses then checked on the victim who was
still conscious. Dr. Villanueva asked Romero to extend his tongue
to determine if he could comprehend instructions. The victim
responded
by extending his tongue three times. Meneses asked his name in
the
presence of Corazon Junsay (the victim's sister) and Dr.
Villanueva.
The victim answered although he was short of breath. Meneses then
asked for the name of the person who hit him and the victim replied
that
it was Paquito "Ada" Romero.chanrobles virtuallaw libraryred
SPO1 Meneses reduced
the questions and answers into writing and had the document[9]
thumbmarked by the victim and signed by him, with Junsay and Dr.
Villanueva
as witnesses. He noticed that the victim was already in serious
condition
at that time and his relatives told Meneses that he was dying.[10]
Corazon Junsay testified
that they went to the scene of the crime and found her brother lying on
the ground. They brought him to the district hospital of
Cajidiocan
where she asked the name of the person who struck him. She
initially
mentioned the names "Rodolfo Moreno" and "Edresito Romero" but the
victim
merely stared at her. When she mentioned the name "Ada," her
brother
reacted with clenched fists. She mentioned the names of Edresito
and Paquito "Ada" Romero because, five years before that, they accused
her brother, the victim herein, of attempting to sexually assault the
wife
of appellant Paquito Romero.[11]
Junsay further testified
that the victim was married and had a child. However, due to his wife's
mental sickness, Junsay attended to the victim after the incident and
took
care of the funeral and burial expenses after he died. Junsay
confirmed
that she was present when the ante-mortem statement of the victim was
taken
and identified her signature as a witness.[12]
Dr. Villanueva testified
on the nature of the injury of the victim and the cause of his death.
Affirming
his findings in the medico-legal certificate,[13]
Dr. Villanueva stated that the fatal injury on the occipital portion of
the victim's head could have been caused by a hard and blunt object,
possibly
an air pump. He confirmed his presence when SPO1 Meneses took the
victim's ante-mortem statement.[14]chanrobles virtuallaw libraryred
SPO3 Giovanni Rico and
Climaco Ruba also testified on the circumstances after the victim died.cralaw:red
On March 16, 2000, appellant
filed a motion to dismiss the case on the ground of double
jeopardy.
This was, however, denied by the trial court in an Order dated March
20,
2000, thus:
O R D E Rchanrobles virtuallaw libraryred
Acting on the motion
to dismiss, dated March 16, 2000, and on the oral arguments by trial
prosecutor
Joel A. Sy, the said motion is utterly without merit. Section 7, Rule
117
of the Revised Rules of Court and the elements cited by the movant
which
must be present in the first case would point to the utter lack of
merit
of this motion to dismiss. Under letter (d), the accused must be
convicted or acquitted or the case was dismissed without his express
consent
which element is lacking in this case. To the surprise of the
Court,
however, the accused, through counsel, would claim that the order,
dated
August 26, 1999 (page 25 of record), shows his conviction. That
this
is not a conviction of the accused it too obvious to elaborate.cralaw:red
WHEREFORE, the motion
to dismiss, dated March 16, 2000, is denied for lack of merit.
Let
the continuation of the reception of evidence for the prosecution be
heard
as previously scheduled tomorrow at 8:30 o' clock in the morning to
give
time for the accused to prepare for the continuation of trial.
The
accused, public prosecutor and counsel for the accused are notified in
open Court.cralaw:red
SO ORDERED.[15]
Appellant interposed
the defense of alibi. He claimed that, on March 18, 1999, at around
7:00
p.m., he was in his house. Subsequently, he went to the house of
his brother Edresito "Kito" Romero to buy cigarettes, two bottles of
coke
and two tablets of medicine for his sick children. In Kito's
house,
he met Rodolfo Moreno, the victim and his brother who were drinking gin
and beer. Victim Augusto Ruba drank gin while Moreno drank beer.
He stayed there for 15 minutes and consumed two bottles of beer after
which
he went home to attend to his sick children. He did not leave his
residence until the next morning.[16]
On cross examination,
he testified that his house was only eight meters from that of his
brother.
Hence, even before he left for his brother's house that evening, he
already
knew that the victim and Moreno were there.[17]chanrobles virtuallaw libraryred
Porferio Morteria, Barangay
Captain of Barangay Taclobo, San Fernando, Romblon, testified that it
was
Rodolfo Moreno, and not the appellant, who killed the victim. He
was at the dancing hall with the chief of police when they were told
that
the victim was lying prostrate on the national road. When he
arrived
at the crime scene, he saw the unconscious victim with his legs
stretched
apart in the middle of the national road. The victim was 100
meters
away from the nearest lighted post.[18]
Climaco Ruba and Corazon Junsay were crying aloud. They asked
that
Rodolfo Moreno be arrested inasmuch as, being the last person with the
victim, Moreno was probably the one who struck him. Consequently,
defense witness Morteria, together with the chief of police, including
three policemen and a barangay tanod, went to the house of Rodolfo
Moreno.
However, Moreno's father told them that he already transferred
residence.
Through the help of Corazon Junsay, they reached Moreno's house and he
agreed to be investigated at the police station[19]
On March 22, 1999, at
about 3:00 p.m., Moreno told Morteria that the family of the victim
would
no longer pursue the case against him inasmuch as they could not get
anything
from him. Instead, they instructed him on what to say and to
point
to the appellant as the person who struck the victim. The heirs
of
the victim wanted to collect from the appellant four carabaos and
P30,000.
They offered to share with Moreno the amount that could be collected if
he testified against the appellant.[20]
Jimmy Vicente, a barangay
tanod, corroborated the testimony of Morteria on material points.[21]chanrobles virtuallaw libraryred
On June 8, 2001, the
trial court rendered a decision, the dispositive portion of which reads:
WHEREFORE, this Court
finds accused PAQUITO ROMERO, aka "Ada", GUILTY beyond reasonable doubt
of the crime of Murder under the Information, dated May 25, 1999, and
hereby
sentences him to reclusion perpetua, to indemnify the heirs of the
victim,
Augusto Ruba, in the amount of P50,000.00 and to pay the costs.cralaw:red
The preventive imprisonment
which the accused had undergone shall be credited in his favor to its
full
extent in accordance with Article 29 of the Revised Penal Code.chanrobles virtuallaw libraryred
SO ORDERED.[22]
In convicting the appellant
of murder, the trial court relied on the ante-mortem statements of the
victim pointing to him as the perpetrator of the crime. It also gave
credence
to the narration of Moreno who positively identified the appellant as
the
person who hit the victim at the back of the head. Relying on Moreno's
testimony, the trial court held that treachery attended the commission
of the crime.cralaw:red
Hence, this appeal based
on the following assignments of error:chanrobles virtuallaw libraryred
I
THE TRIAL COURT
GRAVELY
ERRED IN GRANTING THE PROSECUTION'S MOTION TO RE-OPEN THE CASE AND IN
CONVICTING
THE ACCUSED APPELLANT FOR THE CRIME OF MURDER.
II
ASSUMING FOR THE
SAKE
OF ARGUMENTS (sic) THAT THE TRIAL COURT ORDER GRANTING THE
PROSECUTION'S
MOTION TO RE-OPEN THE CASE IS VALID, IT ERRED IN APPRECIATING THE
QUALIFYING
CIRCUMSTANCE OF TREACHERY.[23]
Appellant insists that
his right against double jeopardy was violated when the trial court
granted
the prosecution's motion to re-open the case after it approved
his
plea to the lesser offense of homicide.cralaw:red
We disagree. The trial
court was correct in holding that there was no double jeopardy in this
case, considering that it was not terminated as a result of appellant's
acquittal, conviction or dismissal. The order approving the
guilty
plea to homicide, with conditions, was not a judgment of
conviction.
The dispositive portion of the said order which in part reads
"WHEREFORE,
in view of the foregoing, this case is deemed submitted for decision,"
clearly shows that the trial court still had to render a decision on
the
criminal and civil liabilities of the appellant. The said order
merely
approved the agreement between the parties on the new plea to a lesser
offense by the appellant and the conditions attached to it. The trial
court
neither sentenced the accused nor made any ruling on the civil
indemnity
in favor of the heirs of the victim.chanrobles virtuallaw libraryred
That appellant killed
the victim has definitely been established. The only issue to be
resolved
is the attendance of treachery in the commission of the crime.cralaw:red
We have always ruled
that two conditions must concur to constitute treachery, namely: (1)
the
employment of means of execution that gives the person attacked no
opportunity
to defend himself or to retaliate, and (2) deliberate or conscious
adoption
by the culprit of the means of execution.[24]
According to the defense, based on the evidence presented, the victim
had
an opportunity to defend himself because, prior to the attack, he was
aware
of the presence of the appellant with whom he had a previous
misunderstanding.
On the other hand, it is the Solicitor General's position that the
assault
was treacherous as the victim had no inkling that the appellant would
attack
him from behind. According to the Solicitor General, the presence
of the appellant by the roadside near a lighted lamppost was not enough
to warn the victim of any danger because he did not know that the
appellant
was armed. In fact, they were together drinking just an hour
before
the assault.cralaw:red
We agree with the appellant
that no treachery attended the commission of the crime. Just prior to
the
assault, the victim and Moreno already saw the appellant in an
intimidating
posture. His left hand was at his back and his right fist was
slightly
clenched. Faced with that scenario, the possibility of danger against
his
person must have crossed the victim's mind. Instead of backing off, the
victim just smiled, whispered to Moreno that he would go ahead and in
fact
continued walking. The victim clearly had the chance to turn back
but he did not. He was undoubtedly forewarned and was fully aware
of the possible attack against him but he ignored the same by
continuing
to walk past the appellant. Ordering Moreno to go behind him was
a signal that he could handle any possible assault by the
appellant.
The victim had the opportunity to defend himself or at least avoid the
appellant. Hence, no treachery attended the commission of the
crime.cralaw:red
As there is reasonable
doubt on the attendance of treachery, the crime committed is homicide
only
under Article 249[25]
of the Revised Penal Code.cralaw:red
On the civil liability
of the appellant, Corazon Junsay testified that she and her parents
incurred
the following expenses: (1) P11,100 when her brother died (2) P600 for
the embalming (3) P7,000 for the coffin (4) P1,000 for the burial rites
and (5) P4,575 for the funeral.[26]
All in all, she said she and her parents spent P24,282 but she was
unable
to present any receipt to support her claim. We therefore cannot
approve
Junsay's list of hospital, funeral and burial expenses amounting to
P24,282.cralaw:red
However, we affirm the
trial court's award of P50,000 as civil indemnity ex delicto. We
likewise
award P50,000 as moral damages for the anguish suffered by the heirs of
the victim as a result of his untimely demise.chanrobles virtuallaw libraryred
WHEREFORE, the appealed
decision of the trial court is hereby MODIFIED. Appellant Paquito
Romero, alias "Ada," is hereby found GUILTY beyond reasonable doubt of
the crime of HOMICIDE and sentenced to suffer the indeterminate penalty
of 8 years of prision mayor, as minimum, to 14 years, 8 months and 1
day
of reclusion temporal medium, as maximum, and to pay the heirs of the
deceased
victim, Augusto Ruba, the sum of P50,000 as civil indemnity ex delicto
in addition to P50,000 as moral damages. Costs against the
appellant.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman),
Panganiban,
Sandoval-Gutierrez and Carpio-Morales, JJ., concur.cralaw:red
____________________________
Endnotes:
[1]
Penned by Judge Placido Marquez; Rollo, pp. 19-25.
[2]
Rollo, p. 9.chanrobles virtuallaw libraryred
[3]
TSN, September 23, 1999, pp. 2-7.
[4]
Id., pp. 7-12.
[5]
Id., pp. 12-14.
[6]
Id., p. 25.chanrobles virtuallaw libraryred
[7]
Id., pp. 14-15.
[8]
Id., pp. 15-18
[9]
Exhibit "B".chanrobles virtuallaw libraryred
[10]
TSN, December 6, 1999, pp. 1-15.
[11]
Id., pp. 24-25.chanrobles virtuallaw libraryred
[12]
Id., pp. 15-22.
[13]
Exhibit "D".
[14]
TSN, January 17, 2000, pp. 5-10.
[15]
Rollo, p. 87.chanrobles virtuallaw libraryred
[16]
TSN, March 22, 2000, pp. 2-6.
[17]
Id., pp. 7-8.chanrobles virtuallaw libraryred
[18]
Id., p. 10.
[19]
Id., 2-7.chanrobles virtuallaw libraryred
[20]
Id., p. 8.
[21]
Id., pp. 27-33
[22]
Rollo, p. 24.
[23]
Rollo, p. 55.
[24]
People v. Dumayan, G.R. No. 116280, May 21, 2001.chanrobles virtuallaw libraryred
[25]
Art. 249. Homicide. Any person who, not falling within the provisions
of
Article 246, shall kill another without the attendance of any other
circumstances
enumerated in the next preceding article, shall be deemed guilty of
homicide
and be punished by reclusion temporal.
[26]
TSN, December 6, 1999, pp. 26-27. |