SUPREME COURT DECISIONS

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DISSENTING OPINION

PARDO, J.:

We agree that there are indeed many unfortunate tragedies that have happened because of the improvident use of a firearm to exacerbate a simple altercation over traffic. One was the Rolito Go case. He shot in cold blood a college graduate of De La Salle University ¹ after their cars nearly collided in a one-way street, snuffing the young life of the victim. He was convicted of murder. This case is another such senseless killing.

This case occurred on the eve of All Saints Day 1998, along the Garden of Remembrance within Loyola Memorial Park, Marikina City, Metro Manila. The trial court convicted the accused of murder and sentenced him to death. The case is now before us on automatic review. The majority would convict the accused only of homicide, not of murder. I regret that I cannot give my concurrence.

In the afternoon of October 31, 1998, at about 2:30, both the family of complainant Noel Andres and that of accused Inocencio Gonzales were on their way to the exit of the Loyola Memorial Park, Marikina. The accused was driving a white Isuzu Esteem van with his grandson and three housemaids, while the complainant was driving a maroon Toyota FX with his pregnant wife Feliber Andres, his two year old son, Kenneth, his nephew Kevin and his sister-in-law, Francar Valdez. At the intersection near the Garden of Remembrance, the accused Gonzalez was turning left toward the exit while the complainant Noel Andres was headed straight along the road to the exit; their two vehicles almost collided. Noel Andres was able to step timely on the brakes. The accused continued driving along his way while Noel Andres drove behind accuseds vehicle for some time and cut him off when he found the opportunity to do so. ² Noel Andres got out of his vehicle and knocked on the accused cars window. ³cräläwvirtualibräry

According to complainant Noel Andres, he calmly told the accused to be careful with his driving and informed the latter that he was with his family. To this, accused replied Accidents are accidents, whats your problem. Andres saw the accused turning red in anger, so he decided to go back to his vehicle when he was blocked by accuseds son who said Anong problema mo sa erpat ko. Feeling threatened, Andres immediately boarded his vehicle, sat at the drivers seat, closed the door and partially opened the car window just wide enough to talk back to accuseds son. Suddenly, one of his passengers said Binaril kami. He turned to his wife Feliber Andres and saw her bloodied and unconscious. He turned around and saw his son Kenneth and nephew Kevin also wounded. Noel Andres did not hear the shot. He got out of his vehicle to warn the accused not to flee. He then took the wounded members of his family to the exit where there was an ambulance standing by and the three injured were boarded in the ambulance to be brought to the Sta. Monica Hospital and later transferred to the Quezon City Medical Center.

According to the accused, complainant Andres got out of his vehicle and repeatedly cursed the accused while he stood beside the accused cars window. The accused stayed inside his car and replied. Pasensiya ka na hindi kita nakita, nasilaw ako. Aksidente lang. The complainant would not stop shouting and cursing at him. Dino, the accuseds son, who rode in another vehicle arrived at the scene, confronted complainant Andres and the two had an altercation. Complainant Andres remained outside his vehicle during the altercation with Dino. When complainant Andres tried to reached for something inside his vehicle, Dino froze where he stood. This prompted the accused to get his gun from the glove compartment and feeling that his son was threatened, got out of his car ready to shoot the complainant. When he saw that complainant Andres was not armed, he put down his gun. At this point, accuseds daughter Trisha arrived at the scene, walked past Andres and pushed her father, the accused, away. She hugged him and in the process he fired the gun accidentally. The accused did not know that he hit somebody until the complainants sister-in-law, Francar Valdez got out of the vehicle carrying a bloodied small boy. The accused claimed that he did not try to flee and even pharisaically told the complainants sister-in-law to bring the wounded to the hospital. Perhaps he meant the cemetery.

On November 4, 1998, the prosecution filed with the Regional Trial Court, Marikina City, an Information charging the accused with the complex crime of murder, double frustrated murder and attempted murder, as follows:

That on or about the 31^st day of October 1998, in the city of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously with intent to kill, attack, assault and employ personal violence by means of treachery and abuse of superior strength upon the person of Noel Andres y Tomas, by then and there shooting him with a Glock cal. 9mm pistol but instead hitting one Feliber Andres y Ordoo, on the left back portion of her head, thereby inflicting upon her serious and mortal wound which directly caused her death, as well as hitting John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo physical injuries which ordinarily would have caused their death, thus performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of some cause or causes, independent of their will, that is, the timely and able medical assistance rendered to John Kenneth Andres y Ordoo and Kevin Valdez y Ordoo to their damage and prejudice as well as to the damage and prejudice of the heirs of Feliber Andres y Ordoo.

On arraignment, the accused pleaded not guilty to the charges. Trial ensued.

Feliber Andres, wife of complainant Noel Andres did not die instantaneously. She lived to give birth to a baby girl ⁴ by caesarian section and died the following morning on November 1, 1998. Cause of death was a gunshot wound on the head. ⁵cräläwvirtualibräry

Doctors treated Kenneth and Kevin for extraction of metallic fragments on their faces. They were discharged from the hospital six days later on November 6, 1998.

After due trial, on June 25, 1999, the trial court rendered a decision finding that the killing was attended by the qualifying circumstance of treachery and holding the accused guilty of the complex crime of murder for the killing of Feliber Andres and for two counts of frustrated murder for the injuries sustained by Kenneth Andres and Kevin Valdez and sentenced the accused to death. The dispositive portion of the decision reads as follows:

WHEREFORE, foregoing premises considered, the accused Inocencio Gonzalez, Jr., y Esquivel is hereby found guilty beyond reasonable doubt of the complex crime of Murder with Double Frustrated Murder and Attempted Murder penalized under Art. 248, as amended by Republic Act No. 7659 in relation to Article 48 of the Revised Penal Code and is sentenced to suffer the maximum penalty of Death by lethal injection.

The accused is further ordered to pay the following civil liabilities:

1. To the private complainant Noel Andres:

a) the amount of P50,000.00 as indemnity for the death of Feliber Andres;

b) the amount of P3,363,663.60 as indemnity for the loss of earning capacity of the deceased Feliber Andres;

c) the amount of P98,384.19 as funeral expenses;

d) the amount of P271,800.56 for the hospitalization expenses incurred for the injuries sustained by the deceased Feliber Andres and the amount of P23,622.58 representing the expenses for the untimely delivery of the child Ma. Clarisse Andres;

e) the amount of P51,566.00 representing the hospitalization expenses for the injuries sustained by the victim John Kenneth Andres;

f) the amount of P150,000.00 as moral damages suffered for the untimely death of his wife Feliber Andres and for the injuries caused to his son John Kenneth Andres;

g) the amount of P50,000.00 as and by way of attorneys fees and a fee of P2,000.00 per appearance; and

h) the costs of the suit.

2. To the private complainant Nicasio Valdez:

a) the amount of P73,824.75 as actual damages for the injuries sustained by the victim Kevin Valdez; and

b) the amount of P75,000.00 as and by way of moral damages.

SO ORDERED.

In this review, the accused claimed that the shooting was purely accidental. This is another of his false pretensions. He declared that he had no intention to shoot Noel Andres much less his wife nor the children. He lost his balance when his daughter Trisha pushed him backward to stop him from joining the confrontation between Dino and Noel Andres. He tried to free his right hand holding the gun and it accidentally fired hitting the rear window of the left side of the Tamaraw FX. He claimed that he did not see the passengers inside the vehicle at the time of the shooting. The accused asserted that the prosecution failed to establish the attendance of treachery and without said qualifying circumstance, the crime committed was homicide, not murder. We find such pretenses to be utterly false and bigoted. The evidence plainly shows that he directly aimed his pre-loaded pistol with multi-missile bullets, released its safety trigger and deliberately pulled the trigger aiming the gun at complainant Andres. What a poor shot he was. The bullet hit the innocent pregnant wife of complainant. She did not die instantly, although she could have. Divine intervention enabled her to give light to a baby girl born the next day.

The trial court held that the accuseds act of loading the bullet into the chamber of the gun and the cocking of the trigger of his automatic pistol constitute conscious and deliberate effort to employ the gun as a means of committing the crime and resultantly, treachery qualified its commission. The accused testified that his gun was loaded before he left the house and he got out of his car and shot at the rear window on the left side of the complainants vehicle. This testimony could not be true, unless the accused was an instinctive killer who envisioned that he would use his gun to kill someone as he left his house to go to the cemetery. The accused also argued that the gun he used was a semi-automatic, not an automatic pistol which meant that the pistol used had no external safety pin to be released and that the hammer need not be cocked. The pulling of the trigger, intentional or not, would fire the gun. This is another prevarication. Even a semi automatic pistol has to be cocked to chamber load the same with a bullet and activate the trigger-hammer. In the Glock semi-automatic 9mm pistol as the one accused used, the trigger has a built-in safety lever and must be cocked and the trigger purposely pulled to fire the gun.

Accused argued that the trial court improperly gave credence to the testimonies of prosecution witnesses Castro and Ramos. Their narration of the incident was rather absurd and would show that they did not witness the actual shooting. Defense witnesses, on the other hand, testified that Castro and Ramos arrived at the scene only after the shooting.

As regards the injuries sustained by Kevin and Kenneth, the accused argued that there was no intent to kill and that they stayed in the hospital only for six days, the crimes committed were two counts of slight physical injuries. The trial court erred in awarding damages and in admitting in evidence the bunch of receipts representing the medical expenses incurred for the injuries sustained by the victims, without first requiring the prosecution to establish the authenticity of the receipts. The accused also pointed out that the award for loss of earning capacity had no basis as the deceased was unemployed at the time of the incident.

Finally, the accused submitted that the trial court erred in rejecting the mitigating circumstances pleaded by the defense which attended the commission of the crime, i.e., lack of intent to commit so grave a wrong, passion and obfuscation, incomplete defense of a relative and voluntary surrender. The accused asserted that the mitigation circumstances were duly proven and supported by the evidence. The complainant Noel Andres testified that he saw the accused getting red in anger after they had a heated argument immediately prior to the shooting. These circumstances showed that the accused was not in his proper state of mind at the time of the shooting. He was angered by Andres abusive language directed at him and he got out of his car with a loaded gun to protect his son from a perceived danger. The accused claimed that his willingness to help the injured and his voluntary surrender to the police should likewise be considered as mitigating circumstances in the imposition of the penalties.

The Solicitor General agreed with the accused that the crime was not attended by treachery, and hence, the killing of Feliber Andres was homicide, not murder. The Solicitor General was of the view that the shooting was preceded by a heated argument and that the victim was placed on guard that attack was imminent. There was no evidence that the accused deliberately employed the means of attack to insure execution wit out danger of retaliation from the victim. However, with respect to the injuries sustained by Kevin and Kenneth, the Solicitor General disagreed with the accused that he was liable only for slight physical injuries. The injuries sustained by both children were head injuries and could have caused their death if not for the immediate medical attention given them. The number of days they spent in the hospital is not determinative of the severity of the wounds. The accused is liable for frustrated homicide for the injuries of the two small children because he fired the shot at Noel Andres that hit instead his pregnant wife and two small children. He is liable for all the consequences of his unlawful act even if the crime committed is different from that intended (aberratio ictus).

As regards the mitigating circumstances, the Solicitor General asserted that none can be considered in favor of the accused. The accused did not voluntarily surrender to the police and he even entertained the possibility of flight but his car was stuck in traffic along the exit of the memorial park. His claim of incomplete defense of relative was belied by his own admission that complainant Noel Andres did not have a gun and there was no unlawful aggression on his part. There was no threat to his life or the life of his son at the time of the shooting, no uncontrollable fear nor irresistible force that would mitigate the commission of the offense.

The Solicitor General also agreed with the pecuniary awards the trial court granted. He agreed that the late Feliber Andres was a 38-year old registered nurse at the time of the killing. Although she was then not employed because she was pregnant, she still had earning capacity and the trial court properly applied the salary of a government nurse under the salary standardization scheme in the computation of damages for the loss of earning capacity. The receipts presented in evidence by the prosecution to establish hospitalization and other medical expenses incurred by the complainant by reason of the injuries suffered by the victims were duly authenticated by the prosecution witnesses and there is no dispute that they are exact copies of the original receipts presented in court.

In sum, the Solicitor General asserted that the accused fired a single shot but because of the multiple missile bullet that he used committed four offenses. He is liable for the complex crime of homicide for the death of Feliber Andres, double frustrated homicide against Kevin and Kenneth and attempted homicide against Noel Andres, and that the penalty for the gravest offense, that is, homicide, shall be imposed, in its maximum period, which is seventeen (17) years, four (4) months and one (1) day to twenty (20) years reclusion temporal.

We find the appeal without merit. We do not agree with the views of the Solicitor General.

Treachery under Article 14, paragraph 6 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution without risk to the offender arising from the defense which the intended victim might raise. ⁶ For treachery to be appreciated, two elements must concur: (1) the employment of means of execution that would insure the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself or retaliate; and (2) the means of execution employed were deliberately or consciously adopted by the offender. ⁷ The means employed for the commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation by the victim. [8 At the time of the shooting, the complainant was having a tiff with accuseds son. He knew that the complainant was not armed and there was no imminent and grave danger to the life of his son. His conscious use of a firearm with pre-loaded multiple missile bullets against a defenseless man who was totally unaware of the danger to his life, as the events moved fast and he did not even hear the shot constitutes treachery. Accused insured the success of the crime without risk to himself arising from defense or retaliation. The complainant could not defend himself from such firepower, much less retaliate. He was without any firearm. Even if the attack was frontal, it was sudden and the victim was unarmed.

Whether or not the attack succeeds against its intended victim or injures another, or whether the crime committed is graver than that intended is immaterial, as long as it is shown that the attack is attended by treachery, the qualifying circumstance may still be considered.

We can not agree with the accused or the view of the Solicitor General that the shooting was not attended by treachery. Noel Andres, who had his pregnant wife and child with him in his Tamaraw FX could have provoked the situation but was not an aggressor. Initially he touted the accused for his failure to observe traffic rules.

However, after the altercation, complainant Andres walked toward his vehicle because the altercation was over. On his way to the Tamaraw FX, he met another man, who was the accuseds son. It appears that Andres had another shouting match with accuseds son. Without ado, accused got his already pre-loaded pistol, alighted from his car and fired a single shot at complainant Noel Andres. He was a poor shot. The single bullet hit instead Feliber Andres on the forehead near the temporal region above the left eye and the splitting metallic shrapnels hit two innocent children on their faces, one on the cheek and the other below the left eye. The intent to kill Noel Andres was evident when accused fired away at him. Accused knew that his son was not physically threatened. Whether Noel Andres was seated at the drivers seat inside his vehicle when accused Gonzales fired, as the prosecution contends or was standing by the door of the drivers seat outside his vehicle, as the defense submits, there is no question that the shot was directed at complainant Noel Andres. However, as heretofore stated, the accused was a poor shot. He made up by arming himself with a semi-automatic pistol loaded with multi-missile bullet that splintered like a shotgun bullet. His son was not in danger. He knew that complainant could easily be pacified without resorting to shooting. Whether accused over-reacted or he shot at Andres out of rage, one thing appears clear to us: the accused deliberately shot complainant Noel Andres treacherously in cold blood. However, it was his wife who was fatally hit in the head (aberratio ictus) and shrapnels hit two young innocent children. By an act of God, she delivered a baby girl alive but gave her life to Him. The shooting was a deliberate act of the accused. We are convinced that the shooting was attended by treachery that qualified the crime of murder aggravated by the use of a semi-automatic pistol specifically fitted with murderous missile. The crime committed for the killing of Feliber Andres was murder, qualified by treachery and aggravated by the use of firearm.

As regards the injuries suffered by the two children, we agree with the Solicitor General that the crime committed was two counts of frustrated homicide. The intent to kill was evident with the use of deadly weapon specially loaded with multi-missile bullets and such intent was clearly made manifest by the acts of the accused undoubtedly intended to kill the victims.

An examination of the testimonies of the attending physicians showed that the wounds sustained by the two children from the metallic fragments may cause death if left untreated. One of the attending physicians testified that the fragments themselves will not cause complications; however, it is the entry of the fragments or the open wound that is susceptible to infection. Two small fragments were no longer extracted from the face of Kevin Valdez as the doctors deemed it to be without danger of complication, but this could still be life threatening.

None of the mitigating circumstances pleaded by the accused was convincingly proved to be attendant and none may be considered in the imposition of the penalties.

IN VIEW WHEREOF , I vote to affirm the decision of the trial Court finding accused guilty of MURDER, qualified by treachery and aggravated by the use of firearm for the killing of Feliber Andres and sentencing him to reclusion perpetua, with the accessory penalties of the law.

For each count of frustrated homicide committed against Kenneth Andres and Kevin Valdez, the accused must be sentenced to the indeterminate penalty of ten (10) years and one (1) day of prison mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum; to indemnify the offended parties Kenneth Andres and Kevin Valdez in the amount of P20,000.00 each.

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Endnotes:

¹ Rolito Go v. Court of Appeals, 206 SCRA 138 [1992].

² TSN, March 16, 1999, pp. 14-18; TSN, ibid., pp. 20-23.

³ Ibid., p. 26.

⁴ N amed Ma. Clarisse.

⁵ Exhibit B, Autopsy Report, Folder of Exhibits, p. 2.

⁶ People v. Basco, 318 SCRA 615 [1999]; People v. Mangahas, 311 SCRA 384 [1999]; People v. Mallari, 310 SCRA 621 [1999]; People v. Sumalpon, 284 SCRA 464 [1998].

⁷ People v. Cabodoc, 263 SCRA 187 [1999]; People v. Malabago, 265 SCRA 198 [1990; People v. Villablanca, 316 SCRA 13 [1999]; People v. Marcelino, 316 SCRA 104 [1999]; People v. Bernas, 309 SCRA 741 [1999]; People v. Penaflorida, 313 SCRA 563 [1999]; People v. Bautista, 312 SCRA 475 [1999]; People v. Molina, 312 SCRA 130 [1999]; People v. Bumer, 319 SCRA 539 [1999].