PHILIPPINE SUPREME
COURT
DECISIONS
SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
Nos.
137949-52
December 11, 2003
-versus-
GEORGE "JORGE"
BOLINGET
Y BAGTAN (AT LARGE); ESTEBAN DOMACYONG
Y PAKSAY; RICHARD
PALEYAN OTHERWISE KNOWN AS ERICK LUMAS-E Y KIMONGO;
REY BUYAGAN Y
GENEYEN
(ACQUITTED); FRANCIS KILONGAN (ACQUITTED);
BONG PATAS (AT
LARGE);
THOMPSON "TAMSON" GADGADAN (AT LARGE);
DANIEL LICDEMAN
(AT LARGE); GERRY BALOYO (AT LARGE)
AND SICDOD "FNU"
(AT LARGE),
Accused,
ESTEBAN DOMACYONG
Y PAKSAY;
RICHARD PALEYAN
A.K.A. ERICK LUMAS-E Y KIMONGO,
Accused-Appellants.
D E C I S I O N
PUNO,
J.:
This is an Appeal
from a Consolidated Decision rendered by Branch 4, Regional Trial Court
of Baguio City in Criminal Case Nos. 11445-R, 11446-R and 11443-R.
Appellants Esteban Domacyong
y Paksay ("Domacyong") and Richard Paleyan a.k.a. Erick Lumas-e y
Kimongo
("Paleyan") along with seven (7) others were charged with the crime of
robbery with homicide in Criminal Case No. 11443-R in an amended
information
which reads as follows:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
The
undersigned
accuses GEORGE "JORGE" BOLINGET Y BAGTANG (sic), ESTEBAN DOMACYONG Y
PAKSAY,
RICHARD PALEYAN otherwise known as ERICK LUMAS-E Y KIMONGO, REY BUYAGAN
Y GENEYEN, FRANCIS KILONGAN, BONG PATAS, THOMPSON "TAMSON" GADGADAN,
DANIEL
LICDEMAN, GERRY BALOYO and SICDOD "FNU" of the crime of ROBBERY WITH
HOMICIDE,
committed as follows:chanroblesvirtuallawlibrary
That on
or
about the 28th day of May 1993, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused,
conspiring, confederating and mutually aiding one another, with intent
to gain and being then armed with guns, and by means of violence and
intimidation,
did then and there willfully, unlawfully and feloniously take, rob and
carry away cash money amounting to about P140,000.00 more or less(,)
from
the Victoria Supermart, owned and managed by Tony Ang; that on the
occasion
and by reason of said robbery(,) and for the purpose of enabling them
to
take, steal, rob and carry away the said amount of money(,) the
above-named
accused did then and there willfully, unlawfully and feloniously and
with
intent to kill, engaged (sic) responding policemen and law enforcing
agents
in a shoot-out, resulting to the death of P/Insp. Nestor Visitacion and
Cesar Reyes as well as grave injuries to Peter Flores y Carbonell and
Domingo
Santiago.chanrobles virtuallaw libraryred
CONTRARY TO LAW.
Domacyong and Paleyan
were
also separately charged with the crime of Violation of P.D. No. 1866
(Illegal
Possession of Firearm and Ammunition), in a similarly-worded
information
in Criminal Case Nos. 11445-R and 11446-R for possession of (1) a .45
caliber
pistol, with no serial number, with one bullet, (2) a .45 pistol with
Serial
No. 604262 and six (6) live ammunitions, and (3) a .38 caliber with
five
(5) live ammunitions, respectively.chanrobles virtuallaw libraryred
The cases were consolidated.
Nineteen witnesses were presented by the prosecution.cralaw:red
Witness Nelson Nialla
("Nialla"), the security guard on duty at Victoria's Supermart,
narrated
that on May 28, 1993, at about 11:00 in the morning,
accused-appellants,
along with several others, barged into the supermarket and announced a
hold-up.[1]
Accused Jorge Bolinget slipped behind cashier Gemma Gabuat, poked a gun
at her right side, ordered her to open the cash register and scooped
all
the money.[2]
His testimony was corroborated by Carina Sernadilla, the cashier
manning
the counter beside Gemma's.[3]
Nialla also testified that the appellants, Paleyan and Domacyong,
pointed
their guns at him and ordered him to squat. Paleyan fired at the
display
and then took the money from the cash registers, while Domacyong
entered
the room of Tony Ang ("Ang"), the store owner. Nialla also noticed a
man
in civilian clothes outside the supermarket. He was peeping inside the
supermarket and was in the act of drawing something from his front
waistline.
At about the same time that the malefactors exited the building, he
heard
a gunshot and saw the man in civilian clothes fall to the ground. He
also
saw a man being lifted to a taxi. Later, he learned that two persons,
both
CIS members, died as a result of the robbery. The two were Cesar Reyes
and Nestor Visitacion.[4]chanrobles virtuallaw libraryred
Albert Lorenzana testified
that he was a bagger at Victoria's Supermart. During the incident, he
was
at the bodega to get some goods. Returning to the supermarket, he met
the
appellant Domacyong, carrying a black bag on his shoulder on his way to
Ang's office.[5]
He heard someone shout "hold-up." He turned his head towards the voice
and saw accused Bolinget pointing a gun at cashier Gemma Gabuat.[6]
Bolinget then took the money from the cash register.cralaw:red
Tony Ang, Victoria's
Supermart owner, testified that he was inside his office attending to a
customer when a man barged in, and at gunpoint, announced a hold-up. He
was ordered not to look up and to hand over the money. The gunman
placed
the money inside a bag and rushed outside. The money totaled
P140,000.00,
more or less.[7]chanrobles virtuallaw libraryred
Chief Inspector Avelino
Edralin ("Inspector Edralin"), then the Assistant Chief of Police of
Baguio,
heard at their radio room one of their policemen asking for help as
there
was an on-going robbery at Session Road. Together with SPO1 Leonardo
Gomez,
he boarded their mobile car and drove to Session Road. Taking Calderon
Street, they passed by SPO1 Hidalgo and told him to join them in the
mobile.
They saw appellant Domacyong running with a gun at Kisad Road.
Inspector
Edralin shouted at the man to stop and raise his hands. He and SPO1
Juanito
Kimay ("SPO1 Kimay") approached Domacyong, while Hidalgo and Gomez
acted
as backups. They arrested him, confiscated his gun and brought him to
the
police station. The gun was a .45 caliber pistol[8]
without a magazine but with one live bullet inside the chamber.[9]chanrobles virtuallaw libraryred
SPO1 Kimay testified
that at the time of the incident, he was shopping with his wife at 456
Department Store along Session Road. Hearing gunshots, he went out of
the
store and met SPO1 Reynaldo Soria ("SPO1 Soria"). SPO1 Soria told him
there
was a robbery and the robbers were escaping towards Calderon Street on
board a taxi. They exchanged fire with the robbers and tailed their
taxicab
towards Harrison Road. Due to heavy traffic near Land Bank, the robbers
alighted from their taxicab and scurried in different directions
towards
Burnham Park. Kimay followed one of them up to Kisad Road near Cholo's
Restaurant. While he was approaching the man, Inspector Edralin arrived
together with Gomez and Hidalgo.[10]
They arrested the man who turned out to be appellant Domacyong. They
confiscated
his firearm, a .45 caliber pistol.[11]chanrobles virtuallaw libraryred
SPO1 Soria and SPO1
Federico Leyba testified that at the time of the robbery, they were
routing
traffic at the intersection of Harrison Road and Magsaysay Avenue. They
received a radio message about a robbery at Victoria's Supermart. They
drove their motorcycles to the supermarket. At the Mabini and Session
Road
intersection, they encountered the robbers who fired at them. They got
off their motorcycles and gave chase to one of the suspects on foot.
They
caught up with the suspect and arrested him at the Burnham Lake Drive.
The suspect is accused Bolinget.[12]
They confiscated from him a .38 caliber revolver[13]
and some money.[14]chanrobles virtuallaw libraryred
SPO2 Rey Ekid, a member
of the Baguio Police Station, narrated how he assisted in pursuing the
robbers of Victoria's Supermart. He boarded their mobile car together
with
Sgt. Ruben Gomez and PO1 Eduardo Cocal and rushed to the place. Upon
learning
that the armed robbers fled towards Burnham Park, he and PO1 Copal
alighted
from their mobile and walked until they reached Cholo's Restaurant
along
Kisad Road. They saw four persons scaling the walls of the Athletic
Bowl,
and fired warning shots. The men did not stop and upon reaching the
other
side of the wall, scampered in different directions. One of them ran to
the middle of the Athletic Bowl and Ekid was able to arrest him. He
identified
him as appellant Paleyan.[15]
Appellant Paleyan surrendered a .45 cal. firearm[16]
which he threw to the ground in the course of his arrest.chanrobles virtuallaw libraryred
Inspector Oasan, then
the Chief of the Investigation Section of the Baguio City Police
Station,
likewise testified about his role in the Victoria's Supermart robbery.
Upon knowing of the incident, he summoned Sgt. Elmer Cruz and PO3 Romeo
Agngaray and proceeded to the place on board Cruz' private car. Along
the
way, they were informed that the robbers fled to Burnham Park. Oasan
alighted
and went on foot towards Mabini Street while his companions proceeded
by
car towards Calderon Street. Upon reaching Burnham Lake Drive, he met
several
policemen, including SPO1 Leyba, who had arrested a person who was
turned
over to him. He identified the person as accused Bolinget.[17]
SPO1 Leyba and SPO1 Soria also handed to him some money which they
recovered
from Bolinget. They executed a joint affidavit on the turn-over of the
cash amount.[18]
Oasan then returned the money amounting to P16,460.50 to Ang, the owner
of Victoria's Supermart.[19]chanrobles virtuallaw libraryred
Inspector Oasan also
testified that SPO1 Ekid turned over a firearm of .45 cal. to him along
with a magazine containing five (5) ammunitions.[20]
He likewise received a .38 cal. revolver from Mr. Rabang, the security
officer of Burnham Park.[21]chanrobles virtuallaw libraryred
Lilian Lauron, Records
Officer III of the Records Legal & Research Branch, Firearms and
Explosives
Office of Camp Crame, and SPO3 Elpidio Agngarayngay, records verifier
of
the Records Branch of Camp Crame's Firearms and Explosives Office, also
took the witness stand. They testified that the records on file at the
Firearms and Explosives Office show that appellants Domacyong and
Paleyan
and accused Bolinget are not licensed or registered firearm holders.[22]
A certification to that effect was likewise issued by Edwin C. Roque,
Senior
Inspector of the PNP and Chief, Records Br., FEO.[23]chanrobles virtuallaw libraryred
A forensic chemist of
the National Bureau of Investigation, Maria Carina Madrigal-Javier,
testified
that she conducted a chemistry examination on the paraffin cast done by
their laboratory technician on the hands of appellants Domacyong and
Paleyan
and accused Bolinget. The results of her tests showed the presence of
nitrates
on the hands of accused Bolinget[24]
and appellant Domacyong,[25]
but none on the hands of appellant Paleyan.[26]chanrobles virtuallaw libraryred
Dr. Jose Bugayong, Jr.
conducted the medical examination of Cesar Reyes ("Reyes") at the St.
Louis
University Hospital. He testified that Reyes was still conscious but
bleeding
profusely from sustained gunshot wounds which affected his vital organs
at the time he was brought to the hospital. He operated on the victim
with
the help of Senior Resident, Dr. Paul Etiket. Unfortunately, Reyes died
after twenty hours due to massive and extensive bleeding.[27]
Dr. Tedler Depaynos
examined Nestor Sabandal Visitacion at the St. Louis University
Hospital.
He testified that the gunshot wound sustained by Visitacion was fatal
as
it damaged his vital organs. He died after three days.[28]chanrobles virtuallaw libraryred
The affidavits[29]
executed by appellant Domacyong and accused Rey Buyagan were identified
in court by NBI agent George Jularbal. He declared that before he took
down their statements, he apprised them of their constitutional rights.
They were assisted by PAO lawyer, Atty. Panfilo Salango.chanrobles virtuallaw libraryred
The civil liabilities
of the accused and the appellants were the subject of the testimonies
of
Domingo Santiago, the bystander who got hurt in the incident and Imelda
Reyes, the widow of Cesar Reyes. Santiago narrated that he was in front
of McDonald's when he got hit by a bullet fired from the gun of one of
the robbers, whom he identified as appellant Domacyong. The bullet
intended
for the policeman ricocheted and hit him on his left leg. He was
treated
at the Baguio General Hospital for his injuries.[30]
Imelda Reyes testified on the funeral expenses they incurred in the
amount
of P32,579.00.[31]
She likewise declared that they spent P17,300.00 as hospitalization
expenses.
The expenses were not contested by the defense.chanrobles virtuallaw libraryred
The accused waived presentation
of evidence in their behalf and manifested that they were submitting
the
case for decision. They were convicted by the trial court in a
Judgment,
the dispositive portion of which states:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
WHEREFORE,
judgment is rendered as follows:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
CRIMINAL CASE NO.
11445-R
The court
finds
the accused Esteban Domacyong y Paksay guilty of illegal possession of
a .45 caliber pistol; applying R.A. 8294 which amended PD 1866,
sentences
him to 7 years 4 months and 1 day of prision mayor to 8 years of
prision
mayor and to pay a fine of P30,000.00.chanrobles virtuallaw libraryred
CRIMINAL CASE NO.
11446-R
The court
finds
the accused Erick Lumas-e y Kimongo (Richard Paleyan) guilty of illegal
possession of 1 caliber .45 pistol with 6 live ammunition; applying
R.A.
8294 which amended PD 1866, sentences him to 7 years 4 months and 1 day
of prision mayor to 8 years of prision mayor and to pay a fine of
P30,000.00.chanrobles virtuallaw libraryred
CRIMINAL CASE NO.
11443-R
The court
acquits
Rey Buyagan y Geneyen and Francis Kilongan for insufficiency of
evidence,
but finds the accused George "Jorge" Bolinget y Bagtang, Esteban
Domacyong
y Paksay and Richard Paleyan (aka Erick Lumas-e) y Kimongo GUILTY
beyond
reasonable doubt of the crime of Robbery with Homicide as penalized in
paragraph 1, Article 294 of the Revised Penal Code aggravated by use of
unlicensed firearms (sic), hereby sentences George "Jorge" Bolinget,
Esteban
Domacyong and Richard Paleyan (aka Erick Lumas-e) to Reclusion Perpetua
and to pay jointly and severally the:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
Heirs
of Cesar
Reyes the amount of P50,000.00 by way of indemnification for his death;
P72,599.00 for hospitalization and funeral expenses; P200,000.00 by way
of moral damages;chanrobles virtuallaw libraryred
Heirs of
Nestor Visitacion
the amount of P50,000.00 by way of indemnification for his death;
P88,096.65
for actual expenses; P200,000.00 by way of moral damages;chanrobles virtuallaw libraryred
Domingo
Santiago the
amount of P1,000.00 for actual expenses and to pay costs.chanrobles virtuallaw libraryred
Let a warrant of
arrest
issue for George "Jorge" Bolinget, who had escaped from detention, for
the service of his sentence as hereinbefore set forth.chanrobles virtuallaw libraryred
Send the records
of
Criminal Case No. 11443-R to the Archives pending the apprehension of
accused
Bong Patas, Thompson Gadgadan, Daniel Licdeman, Gerry Baloyo, and
Sicnud
(FNU), for whom a warrant of arrest is ordered to issue.cralaw:red
SO ORDERED.[32]
Appellants Domacyong
and
Paleyan raise in this appeal, the lone error that "the Regional Trial
Court
erred in finding the accused guilty beyond reasonable doubt of the
complex
crime of robbery with homicide without stating the facts and the law on
which it was based. There were no clear and convincing evidence
whatsoever
to show and prove that the accused were the ones who were responsible
for
the death of the two persons when the alleged robbery was committed."[33]
They contend that there was no proof presented by the prosecution on
the
manner surrounding the death of, and the identity of, the person(s) who
shot the victims during the robbery. They submit that the crime of
homicide
not having been proven, it cannot be complexed with robbery.[34]
We uphold the ruling
of the trial court.cralaw:red
Article 294(1) of the
Revised
Penal Code provides:chanrobles virtual law library
Art. 294.
Robbery
with violence or intimidation of persons - Penalties. - Any person
guilty
of robbery with the use of violence against or any person shall suffer:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
1. The penalty of
reclusion
perpetua to death, when by reason or on occasion of such robbery, the
crime
of homicide shall have been committed, or when the robbery shall have
been
accompanied by rape or intentional mutilation or arson.[35]chanrobles virtuallaw libraryred
x
x
x
x x
x
x x x. (Emphasis
supplied.)
The crime of robbery
with
homicide requires proof of the following elements: (1) the taking of
personal
property with violence or intimidation against persons; (2) the
property
taken belongs to another; (3) the taking was done with animo lucrandi;
and (4) on the occasion of the robbery or by reason thereof, homicide
was
committed.[36]chanrobles virtuallaw libraryred
Well-entrenched in jurisprudence
is the doctrine that when homicide takes place as a consequence or on
the
occasion of a robbery, all those who took part in the robbery are
guilty
as principals in the complex crime of robbery with homicide, even if
they
did not actually take part in the homicide. The exception is when it is
clearly shown that the accused endeavored to prevent the unlawful
killing.[37]chanrobles virtuallaw libraryred
In the case at bar,
the lack of direct evidence on how the homicides were committed matters
little. The circumstantial evidence leaves scant doubt on the part and
participation of the appellants.chanrobles virtuallaw libraryred
Witness Nialla saw the
victim Cesar Reyes, a CIS agent, standing outside the supermart while
the
robbery was ongoing. He was peeping inside the supermarket and his hand
was holding something in his waist. After the robbery and while the
malefactors
were running out of the supermarket, Nialla heard a gunshot and saw
Reyes
slump to the ground. He testified:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
PROSECUTOR
CARBONELL:chanroblesvirtuallawlibrary
Q: What else
happened
after that?
A: When the said
group
took all the money from the supermart, they ran outside the supermart.cralaw:red
Q: Now, before the
group
ran outside while you were in a squatting position, if you were ordered
to squat, did you notice anything that happened at the entrance of the
(sic) Victoria's Supermart?chanrobles virtuallaw libraryred
A: Yes, Sir.cralaw:red
Q: What did you
notice
there?
A: I noticed a man
in
civilian clothes peeping at the supermart.cralaw:red
Q: Aside from
peeping,
what was he doing at that time when you noticed him?
A: He is (sic)
about
to draw something from his left front waistline. (Interpreter: Witness
drawing by putting his right hand on his left waistline.)
Q: Then, what else
happened?
A: After which I
heard
a gunshot.cralaw:red
Q: From where did
that
gunshot come from?
A: Outside the
supermart.cralaw:red
Q: And what
happened
to the man who was peeping and was about to draw something from his
front
left waistline?
A: I saw the man
fell
(sic) on (sic) the ground.cralaw:red
Q: Do you know the
reason
why he fell on (sic) the ground?
A: I think he was
shot.cralaw:red
x
x
x
x x
x
x x x.cralaw:red
PROSECUTOR
CARBONELL:chanrobles virtual law library
Q: When you were
not
able to catch up with any of the persons who held-up the Victoria
Supermart,
what did you do, if any?
A: I go (sic) back
to
the supermart and check (sic) if any customers are (sic) hurt.cralaw:red
Q: While going
back
to the Victoria Supermart, what, if any, did you observe?
A: I saw a man,
somebody
being lifted to board a taxi.cralaw:red
Q: What was the
condition
of that man that (sic) was boarded to (sic) a taxi? Was he lying down?
Was he standing?
A: He is (sic)
lying
down.cralaw:red
Q: How many
persons
were trying to board this man to the taxicab?
A: Three persons.cralaw:red
Q: Is it your
testimony
that they were carrying him while he was lying down?
A: He was lying
down.cralaw:red
Q: Then they
carried
him?
A: They carried
him.cralaw:red
Q: Did you come to
know
the name of this person that (sic) was boarded on a taxi by the three
persons?
A: No, Sir.cralaw:red
Q: Later, did you
come
to know who was this person?
A: Yes, Sir.cralaw:red
Q: Who was this
person?
A: I later on know
(sic)
that he is (sic) a member of the CIS.cralaw:red
Q: Did you come to
know
his name?
A: No, Sir.cralaw:red
Q: Did you come to
know
that aside from the person whom you saw being boarded on a taxi, were
there
other persons injured at that time?
A: I do not know,
Sir.cralaw:red
Q: You do not know?
A: I do not know,
Sir.cralaw:red
Q: Later, did you
come
to know whether anyone died as result of that hold-up at Victoria
Supermart?
A: Yes, Sir.cralaw:red
Q: How many
persons
died?
A: Two (2) persons.cralaw:red
Q: And who are
these
persons?
A: They are both
members
of the CIS.cralaw:red
Q: Do you know
their
names?
A: I later know
(sic)
that one is named Cesar Reyes.cralaw:red
COURT:chanrobles virtual law library
Q: Cesar Reyes?
A: Yes, Sir.cralaw:red
Q: And the other?
A: I cannot
remember
the name anymore.cralaw:red
PROSECUTOR
CARBONELL:chanrobles virtual law library
Q: But, they are
both
members of the CIS?
A: Yes, Sir.[38]
Appellants were
arrested
with guns in their possession right after the robbery took place. The
expert
forensic chemist of the NBI confirmed the presence of nitrates on the
hands
of appellant Domacyong and accused Bolinget, viz:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
PROSECUTOR
CARBONELL:chanroblesvirtuallawlibrary
Q: Upon receipt of
the
request for paraffin test marked in evidence as Exhibit "C," what did
you
do, Madam Witness?
A: Sir, the date
(sic),
it was a Saturday when the request was submitted to the office and I
was
not the one who took the paraffin test on the left and right hands of
the
subjects, George Bolinget, Richard Paleyan and Ray Buyagan. I only
conducted
the chemistry examination on the paraffin cast of the above-mentioned
persons.chanrobles virtuallaw libraryred
Q: Do you know who
took
the paraffin cast of the left and right hands of the three accused?
A: Our laboratory
technician.cralaw:red
Q: By the name of?
A: Ernesto Labayog.cralaw:red
x
x
x
x x
x
x x x.cralaw:red
Q: Will you tell
this
Honorable Court how that field examination was conducted?
A: The paraffin
cast,
the left and on the right hands were treated with diphenylamine test. A
blue speck which appeared (sic) on the cast indicates the presence of
nitrates.chanrobles virtuallaw libraryred
x
x
x
x x
x
x x x.cralaw:red
Q: Now after
conducting
the paraffin test on the paraffin cast of the left and right hands of
the
accused George Bolinget, what did you find out?
A: Upon treatment
with
diphenylamine on the left and right paraffin cast of subject George
Bolinget
y Bagtan specks resided out from the cast and I have numbered them and
described as follows: (Showing the representation of the left and
right
hands of the subject are the crosses indicating the specks, numbered
crosses
therein).chanrobles virtuallaw libraryred
x
x
x
x x
x
x x x.cralaw:red
Q: Now, I invite
your
attention to your "FINDINGS" in Exhibit "D," Your Honor and the
findings
states (sic) that — "The diphenylamine paraffin tests for nitrates
conducted
on the dorsal aspects of the left and right hands from the wrist joints
to the fingertips gave POSITIVE RESULTS with specks located as follows:
Then there are entries on the left hand and then spaces. The entries,
let
us start with the entries for the left hand. In Item No. 1, you stated:
'One (1) speck on the distal third, proximal phalanx, thumb;"' Did you
indicate this speck on Exhibit "E"?chanrobles virtuallaw libraryred
A: Yes, Sir.cralaw:red
Q: Where is that?
A: The number one
(1)
on the left hand is the same as being described in my report as one
phalanx
thumb. The same with specks on the "2, 3, 4, 5, 6" on the left hand.chanrobles virtuallaw libraryred
Q: And in all
aspects,
you were able to arrive at "1, 2, 3, 4, 5, 6" under the entries on the
left hand?
A: Yes, Sir, left
hand.cralaw:red
Q: Madam Witness,
what
does this the presence of specks in Nos. "1, 2, 3, 4, 5 and 6" under
the
left hand indicate?
A: It indicates
the
presence of nitrates so it is possible that the left hand was
contaminated
with nitrates.cralaw:red
Q: And what if
there
are nitrates on the left hand?
A: The person or
subject
could have fired a gun.cralaw:red
Q: Let us go to
the
entries under the right hand. There are five numbers also. Did you
indicate
the specks in Exhibit "E"?
A: Yes, Sir, the
same
thing again on the right hand, the numbered specks described or
reflected
in my report.cralaw:red
Q: And, is it your
testimony
that with the presence of specks as you indicated in the right hand in
Exhibit "E," the accused could have fired a gun?
A: Considering the
location,
the number and the distribution of the specks, I could say that the
subject
or person could have fired a gun.[39]
PROSECUTOR
CARBONELL:chanrobles virtual law library
Q: Again, how many
kinds
of examination did you conduct on the paraffin cast of the left and
right
hands of Esteban Domacyon (sic) y Paksay?
A: Only the
chemical
examination.cralaw:red
Q: How was that
done?
A: The casts on
the
left and right hands was (sic) treated with defenelamine (sic) re-agent
and from the paraffin cast indicating the presence of nitrates.chanrobles virtuallaw libraryred
Q: Did you prepare
a
sketch of the left and right hands and did you indicate in that sketch
the location of the blue specks?
A: Yes, sir.cralaw:red
PROSECUTOR
CARBONELL:chanrobles virtual law library
The witness
produced
the sketch of the left and right hands of Esteban Domacyon (sic) y
Paksay.
For purposes of identification, we pray to be marked Exhibit "G."[40]chanrobles virtuallaw libraryred
Appellant Paleyan's
hands
were found negative of nitrates. But that will not exculpate him. He
participated
in the robbery where two (2) persons were killed and another one was
wounded.
Absent any proof that he tried to prevent the killing and wounding of
these
victims, he is liable for the crime of robbery with homicide.
Domingo Santiago, the
bystander who was injured in the incident, likewise identified
appellant
Domacyong as the person who fired the gun from which came the bullet
that
hit him, viz:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
PROS.
CARBONELL:chanroblesvirtuallawlibrary
Q: Do you know if
the
gunman fired at Soria?
A: Yes, he fired.cralaw:red
Q: How many times
did
he fire?
A: He fired once.cralaw:red
Q: Do you know if
Soria
was hit?
A: He was not hit.cralaw:red
Q: Who was hit
instead?
A: I was the one
who
was hit on the leg.cralaw:red
COURT:chanrobles virtual law library
Q: Left leg?
A: Left leg.cralaw:red
PROS. CARBONELL:chanrobles virtual law library
Q: How far were
you
from the gunman from (sic) the time he fired the gun?
A: Around 3 to 4
meters.cralaw:red
Q: Should you see
that
person again who fired the gun at Soria, but hit you instead at your
leg,
should you see him again, would you be able to identify him?chanrobles virtuallaw libraryred
A: Yes, Sir.cralaw:red
Q: Is he inside
the
courtroom?
A: Yes, Sir.cralaw:red
Q: Will you point
to
him.cralaw:red
MRS. PAQUITO:chanrobles virtual law library
Witness
approaching
somebody inside the courtroom who stood up and when asked, gave his
name
as Esteban Domacyong.cralaw:red
Q: Are you sure
that
the person you saw fired (sic) at Soria is the person you identified
this
morning?
A: Yes, Sir.cralaw:red
Q: You are sure?
A: Yes, Sir.[41]
Anent the gunshot
wounds
suffered by the deceased victims, Dr. Bugayong testified that he
examined
the victim, Cesar Reyes, around noon of May 28, 1993. He confirmed that
Reyes died because of two gunshot wounds, the trajectory of which were
"more or less horizontal."[42]
Dr. Depaynos likewise testified that the trajectory of the single
gunshot
wound which caused the death of the victim, Nestor Visitacion Sebandal,
was "more or less horizontal."[43]chanrobles virtuallaw libraryred
Again, we reiterate
the well-settled rule that as long as homicide resulted during, or
because
of, the robbery, even if the killing is by mere accident, the crime of
robbery with homicide is committed.[44]
As we repeatedly explain, it is enough that death results by reason or
on the occasion of the robbery inasmuch as it is only the result
obtained
that is necessary, without reference or distinction as to the
circumstances,
causes, modes, or persons intervening in the commission of the crime.[45]chanrobles virtuallaw libraryred
We now come to appellants'
guilt for the crime of illegal possession of firearms. The trial court
separately convicted appellants of the crime of violation of Republic
Act
No. 8294[46]
amending Presidential Decree No. 1866. The violation was also
appreciated
by the trial court to aggravate their penalty in the crime of robbery
with
homicide. We note that counsel for appellants included in their notice
of appeal their conviction for illegal possession of firearms.
Nonetheless,
said counsel did not assail the said judgment with any particular
assignment
of error.chanrobles virtuallaw libraryred
Republic
Act No. 8294 provides that "if homicide or murder is committed with
the use of an unlicensed firearm, such use of an unlicensed firearm
shall
be considered as an aggravating circumstance."[47]
We have consistently ruled that if an unlicensed firearm is used in the
commission of any other crime, there can be no separate offense of
simple
illegal possession of firearms.[48]
Thus, in People vs. Ladjaalam,[49]
we held:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
x
x
x A simple reading thereof (R.A.
No. 8294) shows that if an unlicensed firearm is used in the
commission
of any crime, there can be no separate offense of simple illegal
possession
of firearms. Hence, if the "other crime" is murder or homicide, illegal
possession of firearms becomes merely an aggravating circumstance, not
a separate offense x x xchanrobles virtuallaw libraryred
Moreover, penal laws
are
construed liberally in favor of the accused. In this case, the plain
meaning
of RA 8294's
simple language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law
demonstrates
the legislative intent to favor the accused.
In the cases at bar,
the crime of robbery with homicide with the use of unlicensed firearms
was committed by appellants. In line with law and jurisprudence, the
use
of unlicensed firearms merely aggravates the crime of robbery with
homicide.
It does not constitute a separate crime. Necessarily, the conviction of
appellants for illegal possession of firearms has to be set aside.chanrobles virtuallaw libraryred
Under Article 294 of
the Revised
Penal Code, a person guilty of the crime of robbery with homicide
shall
suffer the penalty of reclusion perpetua to death. There being an
aggravating
circumstance, the penalty of death is imposable in the case at bar.
However,
Republic Act
No. 7659 (Death Penalty Law) was approved only on December 13,
1993.
The penalty of death being disadvantageous to the appellants, the law
cannot
be given any retroactive effect. Hence, the proper penalty to be
imposed
on them is reclusion perpetua.chanrobles virtuallaw libraryred
We modify the solidary
civil liabilities of the appellants imposed by the trial court. The
heirs
of each victim are entitled to a civil indemnity of P50,000.00, without
need for proof other than that death occurred as a result of the crime.[50]
They are also entitled to moral damages in the sum of P50,000.00.[51]
In accordance with Article 2230 of the Civil
Code of the Philippines,[52]
appellants are liable to pay the heirs of each victim, exemplary
damages
in the amount of P25,000.00 in view of the presence of an aggravating
circumstance.[53]
Anent actual damages, the defense admitted the funeral expenses of
Cesar
Reyes amounting to P32,579.00.[54]
It also admitted the hospital expenses of Reyes in the amount of
P17,300.00.[55]
As to the victim Nestor Visitacion, the trial court issued an order
dated
February 28, 1995 stating that counsels of both sides stipulated on the
following:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
1. That the
wife of the late Lt. Nestor Visitacion by the name of Lina M.
Visitacion
incurred expenses in the amount of P88,096.65;
2. The deceased
Nestor
Visitacion was at the age of 36 years at the time of his death;chanrobles virtuallaw libraryred
3. At the time of
his
death, Mr. Visitacion was a lieutenant or inspector of the PNP with a
salary
of P6,850.00 per month;chanrobles virtuallaw libraryred
x x
x
x x
x
x x x.[56]
Consequently,
appellants
are liable to pay the heirs of Visitacion P88,096.65 as actual damages.
They are also liable for his loss of income in the amount of
P1,191,900.00,
computed as follows:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
Life
Expectancy
– 2/3 x (80 – age of the victim at the time of death)
– 2/3 x (80 – 36)
– 2/3 x 44
– 29 years
Gross Annual
Income
– gross monthly income x 12 months
– P6,850.00 x 12
– P82,200.00
Loss of Earning
Capacity
– Life Expectancy x (Gross – Annual Income – Living Expenses)[57]
– 29 x (P82,200.00 – P41,100.00)
– 29 x P41,100.00
– P1,191,900.00. 58
The award of actual
expenses
sought by Domingo Santiago cannot be granted for lack of proof.[59]chanrobles virtuallaw libraryred
IN VIEW WHEREOF, the
consolidated
decision of Branch 4 of the Regional Trial Court of Baguio City is
modified.
In Criminal Case No. 11443-R, appellants Domacyong and Paleyan are held
guilty of the complex crime of robbery with homicide aggravated by the
use of an unlicensed firearm, and are sentenced to an indivisible
penalty
of reclusion perpetua. They are likewise jointly and severally liable
to
pay:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
1. The
heirs
of Cesar Reyes:chanroblesvirtuallawlibrary
a.
P50,000.00
as civil indemnity;
b. P50,000.00
as moral
damages;
c. P25,000.00
as exemplary
damages; and cralaw:red
d. P49,879.00
as actual
damages.cralaw:red
2. The heirs of
Nestor
Visitacion:chanroblesvirtuallawlibrary
a.
P50,000.00
as civil indemnity;
b. P50,000.00
as moral
damages;
c. P25,000.00
as exemplary
damages;
d. P88,096.65
as actual
damages; and cralaw:red
e.
P1,191,900.00 for
loss of income.chanrobles virtuallaw libraryred
They are acquitted from
the charge of illegal possession of firearms in Criminal Case No.
11445-R
and Criminal Case No. 11446-R.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Quisumbing, Austria-Martinez,
Callejo, Sr. and Tinga, JJ., concur.chanrobles virtuallaw libraryred
____________________________
Endnotes:chanroblesvirtuallawlibrary
[1]
TSN, Nelson Nialla, August 17, 1994, pp. 6–7.
[2]
Id. at 8–9; TSN, Gemma Gabuat, July 4, 1994, pp. 6–8.
[3]
TSN, Carina M. Sernadilla, June 21, 1994, pp. 4–5.
[4]
TSN, Nelson Nialla, August 17, 1994, pp. 9–13.
[5]
TSN, Albert Lorenzana, July 6, 1994, pp. 6–7.
[6]
TSN, Albert Lorenzana, August 15, 1994, pp. 5–8.
[7]
TSN, Tony Ang, July 5, 1994, pp. 4–6.
[8]
Exhibit "M."chanrobles virtuallaw libraryred
[9]
TSN, Avelino Edralin, November 22, 1993, pp. 1–8.
[10]
TSN, Reynaldo Kimay, November 8, 1994, pp. 4–8.
[11]
Id. at 9.chanrobles virtuallaw libraryred
[12]
TSN, Franciso Leyba, January 24, 1994, p. 11; TSN, Reynaldo Soria, May
23, 1994, p. 9.
[13]
TSN, Franciso Leyba, January 24, 1994, pp. 11–15.
[14]
TSN, Reynaldo Soria, May 23, 1994, p. 14.
[15]
TSN, Rey Ekid, April 26, 1994, pp. 3–9.
[16]
Exhibit "V."chanrobles virtuallaw libraryred
[17]
TSN, Gilbert Oasan, January 24, 1994, p. 23.
[18]
Exhibit "T;" Original Records, Vol. 2, p. 188.
[19]
Exhibit "U;" Original Records, Vol. 2, p. 189.
[20]
Exhibit "V."chanrobles virtuallaw libraryred
[21]
Exhibit "Z."chanrobles virtuallaw libraryred
[22]
TSN, Lilian Lauron, August 10, 1993, pp. 5–11; Elpidio Agngarayngay,
November
9, 1993, pp. 3–10.
[23]
Exhibits "A" and "B;" Original Records, Vol. 2, pp. 169–170.chanrobles virtuallaw libraryred
[24]
Exhibits "D" and "E;" Original Records, Vol. 2, p. 173; TSN, Ma. Carina
Javier, November 16, 1993, pp. 6–10.
[25]
Exhibits "F" and "G;" Original Records, Vol. 2, pp. 174–175; TSN, Ma.
Carina
Javier, November 16, 1993, pp. 3–4.
[26]
Exhibit "J;" Original Records, Vol. 2, p. 178; TSN, Ma. Carina Javier,
November 16, 1993, pp. 6–7.
[27]
TSN, Dr. Jose Bugayon, Jr., November 22, 1993, pp. 2–10.chanrobles virtuallaw libraryred
[28]
TSN, Dr. Tedler Depaynos, November 23, 1993, pp. 3–5.chanrobles virtuallaw libraryred
[29]
Exhibits "R" and "S;" Original Records, Vol. 2, pp. 183 and 186.chanrobles virtuallaw libraryred
[30]
As evidenced by the Medico-Legal Certificate marked as Exhibit "MM;"
Original
Records, Volume 2, p. 205.
[31]
Exhibit "OO;" Original Records, Volume 2, pp. 212–219.chanrobles virtuallaw libraryred
[32]
Rollo, pp. 62–63.chanrobles virtuallaw libraryred
[33]
Id. at 93.chanrobles virtuallaw libraryred
[34]
Id. at 93–96.chanrobles virtuallaw libraryred
[35]
People v. Mendoza, 284 SCRA 705 (1998).chanrobles virtuallaw libraryred
[36]
People v. Dela Cruz, G.R. No. 148730, June 26, 2003.chanrobles virtuallaw libraryred
[37]
People v. Napalit, G.R. Nos. 142919 and 143876, February 4, 2003.chanrobles virtuallaw libraryred
[38]
TSN, Nelson Nialla, August 17, 1994, pp. 12–15.chanrobles virtuallaw libraryred
[39]
TSN, Ma. Carina Javier, November 16, 1993, pp. 5–8.chanrobles virtuallaw libraryred
[40]
TSN, Ma. Carina Javier, November 22, 1993, pp. 2–3.chanrobles virtuallaw libraryred
[41]
TSN, Domingo Santiago, December 6, 1994, pp. 5–6.chanrobles virtuallaw libraryred
[42]
TSN, Dr. Jose Bugayong, November 22, 1993, p. 5.chanrobles virtuallaw libraryred
[43]
TSN, Dr. Tedler Depaynos, November 23, 1993, p. 4.chanrobles virtuallaw libraryred
[44]
People v. Manuel Daniela and Jose Baylosis, G.R. No. 139230, April 24,
2003.chanrobles virtuallaw libraryred
[45]
People v. Pajotal, 368 SCRA 674 (2001).chanrobles virtuallaw libraryred
[46]
AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS
AMENDED,
ENTITLED "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE,
DEALING IN, ACQUISITION OR DISPOSITION OF FIREARMS, AMMUNITION OR
EXPLOSIVES
OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES,
AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR
RELEVANT PURPOSES" (Approved: June 6, 1997).
[47]
Section 1, par. 2.chanrobles virtuallaw libraryred
[48]
People v. Pangilinan, et al., G.R. Nos. 134823–25, January 14, 2003.chanrobles virtuallaw libraryred
[49]
340 SCRA 617 (2000).chanrobles virtuallaw libraryred
[50]
People v. Liberato and Julian Solamillo, G.R. No. 123161, June 18, 2003.chanrobles virtuallaw libraryred
[51]
People v. Daniela and Baylosis, G.R. No. 139230, April 24, 2003.chanrobles virtuallaw libraryred
[52]
Art. 2230. In criminal offenses, exemplary damages as a part of the
civil
liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages shall be separate and distinct
from fines and shall be paid to the offended party.chanrobles virtuallaw libraryred
[53]
People v. Escote, G.R. No. 140756, April 4, 2003.chanrobles virtuallaw libraryred
[54]
Exhibit "OO."chanrobles virtuallaw libraryred
[55]
Exhibits "QQ," "RR" & "SS."chanrobles virtuallaw libraryred
[56]
Original Records, Vol. 2, p. 91.chanrobles virtuallaw libraryred
[57]
Living Expenses, in the absence of proof, is presumed to be half the
gross
annual income.chanrobles virtuallaw libraryred
[58]
People v. Escote and Acuyan, G.R. No. 140756, April 4, 2003.chanrobles virtuallaw libraryred
[59]
People v. Cabical, G.R. No. 148519, May 29, 2003.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
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