G.R. No. 128286
July 20, 1999
PEOPLE OF THE PHILIPPINES, plaintiff, vs. GILBERT BASAO y
MACA and PEPE ILIGAN y SALAHAY, accused,
PEPE ILIGAN y SALAHAY, accused-appellant.
D E C I S I O N
GONZAGA-REYES, J.:
Accused
Gilbert Basao y Maca and accused-appellant Pepe Iligan y Salahay were charged
before the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, with one
(1) count of Robbery and two (2) counts of murder in three separate
Informations, viz:
Criminal
Case No. C-14:
“That on the [14th] day of April 1994 at about 12:10 o’clock in the afternoon,
more or less, at the National Highway, barangay (sic) Pag-antayan, municipality
(sic) of Cantilan, Province of Surigao Del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping each other, with intent to gain, did,then and there,
willfully, unlawfully and feloniously take, steal and carry away from the dead
body of P/Insp. Joerlick Faburada and Dra. Arlyn Faburada, the following
items, to wit:
One (1)
Caliber .45 pistol valued at P20,000.00
One (1)
ICOM handset Radio - 9,000.00
One (1)
PNPA gold ring - 8,000.00
With a total
value of P37,000.00 to the damage and prejudice of the heirs of the
victims in the aforestated amount.
CONTRARY TO LAW (In
violation of Article 294 of the Revised Penal Code)
Criminal
Case No. C-15:
That on the 14th day of April 1994, at 12:10 o’clock in the
afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan,
municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court. The above-named acccused, conspiring,
confederating and mutually helping each other, armed with high-powered firearm, with intent to kill,
treachery and evident premeditation, did, then and there, willfully and
unlawfully and feloniously assault, attack and shoot Dra. Arlyn Faburada who is
four (4) to five (5) months pregnant hitting and inflicting upon the latter,
multiple gunshot wounds on her body, which wounds or injuries have caused the
instantaneous death of said Dra. Arlyn Faburada, to the damage and
prejudice of her heirs in the following amounts:
P50,000.00 – as life indemnity of the victim
10,000.00 – as moral
damages
10,000.00 – as
exemplary damages
CONTRARY TO LAW (In
violation of Article 248 of the Revised Penal Code), with the presence of the
following aggravating
circumstances:
1. That the crime was committed with insult or
in disregard of the respect due to the offended party on account of her sex and
rank being a doctor;
2. There is abuse of superior strength,
treachery and evident premeditation;
3. With cruelty by deliberately and inhumanly
augmenting the suffering of the victim, outraging or scoffing at her person or
corpse.
Criminal
Case No. C-16:
That on 14th day of April 1994 at 12:10 o’clock in the
afternoon, more or less, at the National Highway, barangay (sic) Pag-antayan,
municipality (sic) of Cantilan, province of Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, armed with a
high-powered firearm, with intent to kill, treachery and evident premeditation,
did, then and there, willfully, unlawfully and feloniously assault and shoot P/Insp. Joerlick Faburada, Chief
of Police, Cantilan Police Station, thereby hitting and inflicting upon the
latter multiple wounds on his body, which wounds have caused the instantaneous
death of said P/Insp. Joerlick Faburada, to the damage and prejudice of
his heirs in the following amounts:
P50,000.00 - as life indemnity of the victim
10,000.00 - as moral
damages
10,000.00 - as
exemplary damages
CONTRARY TO LAW (In
violation of Article 248 of the Revised Penal Code), with the presence of the
following aggravating
circumstances:
1. That the crime was committed with insult or
in disregard of the respect due to the offended party on account of his rank
being the Chief of Police of the place.
2. There is abuse of superior strength,
treachery and evident premeditation.
When Branch 41 of the Regional Trial Court of Cantilan, Surigao del Sur
was created and duly organized all of the above-mentioned cases were transferred
to it.
On
January 13, 1995, Gilbert Basao was arrested while the accused-appellant
remained at large. Upon his arraignment
on August 3, 1995, accused Gilbert Basao, duly assisted by his counsel, entered
a plea of “Not Guilty.” Thereafter, a separate trial was conducted only as
against accused Gilbert Basao of Criminal Cases Nos. C-14, C-15, and C-16.
On
August 15, 1996 herein accused-appellant was arrested by the elements of the
PNP at the Post Office of Pasay City.
On
October 14, 1996, Gilbert Basao y Maca was acquitted[1] by the trial
court in all the three charges for robbery and two (2) separate crimes of
murder for failure of the prosecution to prove his guilt beyond reasonable
doubt. The trial court found that the evidence of the prosecution
has miserably failed to establish the identity of the accused in all these
three aforementioned cases. The prosecution had also failed
to present Reynaldo Angeles and Pastor Ampo, Sr., the letter sender who
informed SPO4 Manuel L. Azarcon that Reynaldo Angeles was the person who pawned
the ring of the late Lt. Joerlick Faburada.
These persons could have shed light as to the identity of the culprit. The affidavit executed by Gilbert Basao during his custodial
investigation was likewise found by the trial court to be inadmissible due to
certain constitutional infirmities with respect to his right to counsel, to be
informed of such rights and the safeguards enshrined under the Constitution
whenever an accused is under custodial investigation.
On
October 17, 1996, the accused-appellant Pepe Iligan y Salahay, duly assisted by
his counsel, entered a plea of “Not Guilty” to the aforementioned charges upon
his arraignment before same court which tried these cases against Gilbert
Basao.
The evidence for the prosecution was derived mainly from the
testimonies of
accused-appellant’s co-accused, Gilbert Basao, and Reynaldo Angeles. The testimonies of SPO4 Manuel Azarcon[2] and
SPO2 Dominador Plaza[3] at the separate trial of these same cases against
Gilbert Basao were reproduced to buttress the evidence for the prosecution
against appellant Iligan. Dr. Luciano Ortega, the
physician from Cantilan Polymedic Hospital, issued medical certificates[4]
regarding the post-mortem examinations on the bodies of the victims, the
Faburada spouses.
Gilbert
Basao testified[5] that from 1993 to 1994, herein accused-appellant used to
stay in the house of his uncle, Gabino Maca, at Padiay, Sibagat, Agusan del
Sur. He knows that the accused-appellant
is a member of the Citizens Armed Forces Geographical Unit (CAFGU) assigned at
Gacub, Carmen, Surigao del Sur.
Basao
recalls that on April 14, 1994 at 9:00 o’clock in the morning, the
accused-appellant arrived at the house of his uncle in full CAFGU uniform with
an M-16 armalite. The accused-appellant
asked him if he could go with him(accused-appellant) to Carrascal for them to
“make money”. When he (Basao) agreed
they both took a jeep from Hinapoyan to Madrid, then from Madrid to Cantilan, Surigao
del Sur. They alighted at the Caltex
Station Crossing at Cantilan, Surigao del Sur where they proceeded to a waiting
shed and herein accused-appellant instructed him to wait for a motorcycle bound
for Carrascal. After awhile, the
accused-appellant went towards a store just opposite the waiting shed, about 15
meters in distance, to buy some cigarettes.
When he hailed an approaching motorcycle, the accused-appellant told him
that he still wanted to smoke a cigarette.
A few minutes later another motorcycle passed by and he was surprised why the accused-appellant looked at
it. When the accused-appellant was about
six (6) to eight (8) meters away from the motrocycle, he (accused-appellant)
strafed its passengers with his armalite, with more or less 20 bullets, hitting
Joerlick Faburada and his wife, Dra. Arlyn Faburada. Dra. Arlyn Faburada, who rode at the back,
was thrown on the street while Joerlick Faburada was dragged by the motorcycle
until it fell flat on the ground.
Joerlick Faburada was then wearing a type “A” Polo shirt police uniform
while his wife was wearing a white blouse.
After shooting the victims, accused-appellant took one .45 caliber
pistol, one ICOM Radio Handset and one PNPA gold ring from the body of Joerlick
Faburada. Basao further narrated that
herein accused-appellant instructed him to get the motorcycle for their ride
but when he was not able to re-start the vehicle, the accused-appellant shouted
at him that they will just walk through the coconut plantation and
ricefield. Both of them proceeded on
foot towards the house of Pastor Pigneo Ampo, accused-appellant’s
brother-in-law, in Madrid, Surigao del Sur.
There, the accused-appellant stayed behind while he (Basao) went to the
house of his uncle at Hinapoyan, Carmen, Surigao del Sur before proceeding
towards his boarding house in Guingona Subdivision, Butuan City.
Witness
Basao also declared in court that on April 19, 1994, the accused-appellant went
to his boarding house together with Reynaldo Angeles and asked him (Basao) to
pawn the class ring of the victim, which request he refused. Accused-appellant then retorted that Reynaldo
Angeles will just be the one to pawn the ring.
Reynaldo Angeles pawned the ring at M-Lhuillier Pawnshop for P2,100.00
for which a receipt was issued.
Afterwards all three of them proceeded to the Red Apple Bar for a
drinking spree. While at the said place,
the herin accused-appellant admitted to him(Basao) that he (the
accused-appellant) shot Lt. Faburada and his wife because “he (Lt. Faburada)
committed a wrong or ‘atraso’ against me” and as to the victim’s wife the
accused-appellant said that “what can I do, she rode on the motorcycle with Lt.
Joerlick Faburada.” However,
accused-appellant did not tell him what the wrong or ‘atraso’ was about. He further narrated that Reynaldo Angeles was
beside him when the accused-appellant told the story about the death of the
Faburada spouses. After they were
through with their drinking spree, he (Basao) and Angeles proceeded to their
respective homes while the accused-appellant planned to go to Cagayan the
following day. He further said that
although he is not related to either of the two victims, the reason why he now
testified against the accused-appellant is because the death of the Faburada
spouses bothered his conscience.
SPO4
Manuel L. Azarcon, the Deputy Chief of Police of Cantilan, Surigao del Sur,
testified[6] that on April 14, 1994, a certain Rodrigo Eleazar reported that a
policeman and a woman was shot at about 30 to 40 meters from Cantilan Polymedic
Hospital and about 1 km. Away from
Barangay Magasang, where he was conducting a pulong-pulong regarding the
forthcoming elections. When he and his
men reached the scene of the crime they identified the two dead bodies to be
that of Lt. Joerlick Faburada, Chief of Police of Cantilan, and his wife Dra.
Arlyn Faburada. In the course of his
investigation, he found out that Lt. Faburada’s .45 caliber pistol valued at
P36,000-40,000, Radio ICOM 02N Handset valued at P9,000 and class ring were all
missing. After taking some
photographs of the bodies of the victims and finishing the customary police
investigation, they brought the bodies of the victims to the Cantilan Polymedic Hospital
where the two victims were declared dead on arrival.
Several days later, on April 27, 1994, while Azarcon was at his residence in
Lininti-an, Cantilan Surigao del Sur, PO2 Warlito Cale brought to him an
envelope containing two (2) handwritten letters of Pastor Martin Ampo, Sr.,
whom he knew very well for the latter frequently visited Cantilan, Surigao del
Sur. The letters revealed that the class
ring of Lt. Faburada was pawned by Reynaldo Angeles of Cabadbaran, Agusan del
Norte at the M-Lhuillier Pawnshop in Butuan City. He presented the letters to the CIS team
headed by S/Insp. Buenaventura A. Mendoza for evaluation. On April 29, 1994, as per instruction in the
letter, he (SPO4 Azarcon) and the CIS team of S/Insp. Mendoza proceeded
directly to the 7th day Adventist Church in Cabadbaran where they met Martin
Ampo, Sr. The latter told them that Reynaldo Angeles also stayed in the same
compound. Martin Ampo, Sr. called
Reynaldo Angeles, who confirmed that the accused-appellant and Gilbert Basao
were the ones who told him to pawn the class ring of the victim in Butuan City. They then proceeded to the M-Lhuillier
Pawnshop together with Angeles and redeemed the class ring for P2,000 for which
a receipt was issued (Exhibit G).
Witness
Reynaldo Angeles,. Whose wife is the first cousin of the wife of the
accused-appellant, identified Gilbert Basao as his classmate since his
elementary grades. He testified[7] that
for two (2) years from 1992, accused-appellant has been engaged in logging
activities at their place at Padiay, Sibagat, Agusan del Sur. On April 19, 1994 at about 3:00 o’clock in
the afternoon, Basao and accused-appellant went to his apartment at Montegrande
Km. 3, Baan, Butuan City; accused-appellant asked him to accompany them (Basao
and herein accused-appellant) to downtown Butuan City. When they (Angeles, Basao and herein
accused-appellant) had reached the place, the accused-appellant asked him “brod
I have a ring you will pawn this and you will be the one to sign the receipt,”
and he acceded to the request. He
pawned the ring at the M-Lhuillier Pawnshop for P2,100.00 for which a
corresponding receipt was issued. After
receiving the said amount, all of them proceeded to the Red Apple in Butuan
City to drink beer. There, he said, the
accused-appellant admitted to him that he (accused-appellant) shot Lt. Joerlick
Faburada, the owner of the ring he pawned, with his M-16 rifle because Lt.
Faburada is very strict in enforcing the laws against illegal logging. The accused-appellant also admitted shooting
Dra. Arlyn Faburada, the wife of Lt. Faburada, because after the motorcycle
turned turtle Dra. Faburada tried to crawl to get the .45 caliber of her
husband.
Witness
Angeles confirmed the testimony of Azarcon that on April 29, 1994, while he was
at Quarry 7th Day Adventist Church, Cabadbaran, Agusan del Norte, Boy Azarcon,
together with Captain Mendoza and his men asked him if he was really the one
who pawned the ring of Lt. Faburada and he replied that he was merely requested
by two persons to pawn the ring at the M-Lhuillier Pawnshop. Afterwards, all of them went to Butuan City
and redeemed the ring from the pawnshop.
He also admitted having executed a sworn statement[8] on April 29, 1994
taken by a police officer of Cantilan in connection with this case.
On
cross-examination, Angeles testified,[9] among others, that when Basao and the
accused-appellant went to his apartment at Montegrande Km. 3 Baan, Butuan City,
he did not know the main purpose of their visit; that it was the
accused-appellant who invited him to go to Butuan City; that he noticed that
the letters “PNPA” were engraved in the outer portion of the ring; that he was
requested by Basao and the accused-appellant to pawn the ring; and that when he
pawned the ring at the M- Lhuillier Pawnshop “he thought that the gold ring
came from a good source.”
On re-direct examination, Angeles declared that when he redeemed the ring at the
M-Lhuiller Pawnshop together with the CIS team, he saw that the ring had an
inner marking of “Joerlick Faburada.” He also stated that even if the
accused-appellant is related to his wife, being first cousins, he is not afraid
to give a statement against the accused-appellant because nobody forced him to
testify against the latter and it was his own decision to do so.
SPO2 Dominador Plaza, the Police Community Relations Officer
and Investigator of Cantilan Police Station, testified[10] that Lt. Joerlick
Faburada is their Chief of Police in Cantilan; that there were many people who
got mad at the latter because of his strict implementation of the law
especially in illegal logging, illegal possession of firearms and others;[11]
and that the latter did not assent to any negotiations with respect
thereto. In fact an anonymous letter
sent to the office of the mayor, petitioned for the ouster of Lt. Joerlick
Faburada because the latter allegedly caused the spread of pest or cholera in
their town.
Accused-appellant Pepe Iligan put up the defense of denial
and alibi.
The
accused-appellant controverted the evidences against him by denying the same. He denied the following, to wit:[12] that he
knows the two victims, Joerlick Faburada and Dra. Faburada;[13] that he knows
Gilbert Basao and that he has seen the latter on April 14, 1994;[14] that he is
related to Reynaldo Angeles; he also denied that he saw Angeles during the
month of April 1994;[15] that he was in the house of Angeles at Baan, Agusan
del Sur on April 19, 1994;[16] that he requested Angeles to pawn a ring for
him;[17] that he was with Basao when
Angeles pawned the ring of Lt. Faburada at the Lhuillier Pawnshop, and that he
had a drinking spree with them afterwards;[18]
that he told a story to Angeles that he personally shot Lt. Joerlick Faburada with an armalite
rifle;[19] and that he has ever been in possession of an armalite rifle not an
M16, M14 or an even rifle.[20]
Accused-appellant’s defense of alibi hinges on his claim that on April
14, 1994 he was on duty as a CAFGU in a detachment in Gacub the whole day. Before he was arrested on August 16, 1996 at a Post Office in Pasay
City, he went to Canlubang, Palao Village to work so that he can help his
brothers and sisters. At the time
of his arrest, he was informed by the arresting officer that a case was filed
against him. He only learned about the
case when the arresting officer brought him to the police station where he
denied that he committed it.
On cross-examination,[21] accused-appellant testified that
he was a CAFGU member assigned at the 67th Infantry Battalion; that although
there were M-16 armalite rifles in said infantry battalion he was only issued a
garand rifle; that
from the time he became a CAFGU member in 1993 to the time he was dropped frorm
the rolls he never went to the 67th Infantry Battallion; that he was dropped from the
rolls as a CAFGU in the year 1994 due to the pendency of these cases against
him, and that he did not surrender to the authorities because he was afraid
that he might be shot; that he met Reynaldo Angeles in Kolambugan, Agusan del Sur when he
stayed there for 6 months; and stated that he knows the wife of Angeles
because the wife of Angeles is the first cousin of his (accused-appellant)
wife; that he does not know why Angeles testified against him for there was no
instance when he filed a case against the latter nor that the latter filed a
case against him; contrary to his earlier denial he admitted that he knew Gilbert Basao when he
was at Padiay, Agusan del Sur in 1992 and that the latter resides in Butuan
City because Basao studies in that place.
To corroborate the accused-appellant’s alibi, the defense
presented the testimony of
Alfredo Yagao, who for three years was the Barangay Captain of Hinapoyan,
Carmen, Surigao del Sur. Yagao
testified[22] that he knew the accused-appellant to be a resident of Sitio
Gacub, Hinapoyan, Carmen, Surigao del Sur. On April 14, 1994, he was in Gacub hauling bananas from morning to
afternoon where other people, some of whom were CAFGU’s, were also
present. He saw accused-appellant at the
waiting shed, the place where bananas were stocked. The accused-appellant was with five (5)
companions and when he asked them where they were going they answered that they
were just roaming. He also testified
that accused-appellant was still at the waiting shed when he left in the
afternoon.
On cross-examination,[23] Yagao testified that the
accused-appellant is a CAFGU member of the 67th Infantry Battalion; that on
April 14, 1994 he saw herein accused-appellant carrying a long firearm, and was then accompanied
by several CAFGU members; that he arrived at the waiting shed at 8:00 o’clock
in the morning to haul bananas and left the place at 4:00 o’clock in the
afternoon.
The trial
court found the accused-appellant guilty beyond reasonable doubt of two counts
of Murder and one (1) count of Robbery.
It opined that the accused-appellant really intended to kill Lt.
Faburada and not to go to Carrascal, Surigao del Sur contrary to what he
originally told Gilbert Basao. The
court, taking note of the fact that Angeles and the accused-appellant are
in-laws whose wives are first cousins and that the accused-appellant has influence
over Angeles by reason of his being a CAFGU member, relied on the testimony of
Reynaldo Angeles that it was the accused-appellant who requested him (Angeles)
to pawn the ring of Lt. Joerlick Faburada.
It also found that the motive of accused-appellant in killing Lt. Faburada was due to the
latter’s very strict enforcement of the laws particularly on illegal logging
and took judicial notice of the fact that the municipalities of Cantilan,
Carrascal, Madrid, Carmen and Lanuza fall within the territorial jurisdiction
of RTC, Branch 41 and are gifted with abundant virgin forest. The trial court rejected the defense of denial and alibi and
did not give probative value to the testimony of Alfredo Yagao, the defense
witness, considering that during the preliminary investigation against
Gilbert Basao and herein accused-appellant, Yagao claimed in his affidavit that
on April 14, 1994 he was at Gacub at 12:00 o’clock up to 1:00 o’clock p.m.
while during his direct testimony, Yagao testified that he was at Gacub,
Hinapoyan, Carmen Surigao del Sur from 8:00 o’clock a.m. up to 4:00 o’clock
p.m. and saw accused-appellant and his five (5) companions without mentioning
Gilbert Basao.
The dispositive portion of the judgment reads:
“WHEREFORE, in view of all the foregoing considerations,
this Court finds:
a) In Criminal Case
No. C-14, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the
crime of Robbery as defined and penalized under Paragraph 5 of Article 294 of
the Revised Penal Code, there being no aggravating nor mitigating circumstances
and applying the indeterminate sentence law, he is hereby sentenced to suffer
an imprisonment ranging from four (4) years to two (2) months and one (1) day
of Prision Correcional as minimum to eight (8) years and One day of Prision
Mayor as maximum. to pay the victim
through the heirs of Lt. Joerlick Faburada the sum of P37,000.00 without
subsidiary imprisonment in case of insolvency and to pay the cost. Being detained, he is credited in the service
of his sentence with the full term of his preventive imprisonment, if he agreed
in writing to abide by the disciplinary rules imposed upon convicted prisoners,
otherwise 4/5 hereof.
b) In Criminal Case
No. C-15, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the
crime of Murder qualified by treachery as defined and penalized under Article
248 of the Revised Penal Code as amended and amended by Section 6 of the
Republic Act No. 7659, is hereby sentenced to the maximum penalty of
death. To pay the heirs of the victim
Dra. Arlyn Faburada, the sum of P50,000.00 as life indemnity of the victim;
P100,000.00 for burial and actual expenses; P500,000.00 for moral damages and
P10,000.00 for exemplary damages and to pay the cost.
c) In Criminal Case
No. C-16, accused Pepe Iligan y Salahay, guilty beyond reasonable doubt of the
crime of Murder qualified by treachery defined and penalized under Article 248
of the Revised Penal Code as amended and amended by Section 6 of Republic Act
No. 7659, is hereby sentenced to the maximum penalty of death. To pay the heirs of the victim Lt. Joerlick
Faburada the sum of P50,000.00 as life indemnity of the victim; P100,000.00 for
burial and actual expenses; P500,000.00 for moral damages and P10,000.00 for
exemplary damages and to pay the cost.
Pursuant
to Section 22 of Republic Act No. 7659, let the criminal records in criminal
cases nos. C-15 and C-16 be forwarded to the Supreme court of the Philippines
for automatic review within twenty (20) days but not earlier that fifteen days
after the promulgation of these judgments.
The Director of Prisons, New Bilibid Prisons, Muntinlupa
City through the Provincial Warden of Surigao del Sur is ordered to take
immediate custody of the convicted prisoner.
SO ORDERED.”[24]
The accused-appellant raises the following assignment of
errors in his brief:
I
THE TRIAL COURT COMMITTED GRAVE ERROR IN ADMITTING IN
EVIDENCE THE TESTIMONY OF GILBERT BASAO AS A WITNESS FOR THE PROSECUTION.
II
THE TRIAL COURT COMMITTED GRAVE ERROR IN RELYING ON THE
TESTIMONY OF REYNALDO ANGELES.
We find this appeal unmeritorious.
Our examination of the evidence convinces us that the trial court correctly relied on
the testimony of Gilbert Basao which positively established that herein
accused-appellant shot the Faburada spouses with an armalite rifle as they were
riding tandem on a motorcycle in the afternoon of April 14, 1994; Lt. Faburada
sustained 18 gunshot wounds[25] on his face and several parts of his body, and
he was dragged by the motorcycle as it turned turtle. His wife Dra. Arlyn Faburada, then four (4)
months pregnant, was thrown off the motorcycle and also sustained nine (9)
gunshot wounds,[26] and when she attempted to reach her husband’s firearm the
latter was again shot by herein accused-appellant[27]. Afterwards the accused-appellant took away
Lt. Joerlick Faburada’s “PNPA” gold ring, one .45 caliber pistol and the
latter’s radio handset.
It has been time tested doctrine that a trial court’s
assessment of the credibility of a witness is entitled to great weight -- even
conclusive and binding if not tainted with arbitrariness or oversight of some
fact or circumstance of weight and influences as in this case.[28] For the
determination of credibility is the domain of the trial court, and the matter
of assigning values to the testimonies of witnesses is best performed by it[29]
which had the opportunity to observe the demeanor of the witnesses and is in a
better position to evaluate their testimonies.[30] Thus, unless the trial judge
plainly overlooked certain facts of substance and value which if considered
might affect the result of the case, his assessment on credibility of witnesses
must be respected.[31] In the case at bar, we find no cogent justification to
depart from long standing jurisprudence.
In support of his first assigned error, the
accused-appellant imputes inconsistencies to the testimony of Gilbert
Basao. He avers that Gilbert Basao’s
testimony was a complete turn-around from his previous testimonies in the trial
of the cases against him; and when Gilbert Basao was on the witness stand
during his own trial for these same offenses of murder and robbery, he
vehemently denied having had something to do with the ambush-slaying of
Joerlick Faburada and his wife on April 14, 1994.
We are not convinced that there are such contradictions. Accused-appellant failed to point out
specific contradictory statements to support his contention. The records show that the defense counsel had
the opportunity, in the course of Basao’s cross-examination, to confront said
witness with his alleged inconsistent statements and utilize the same to
discredit his testimony. During the
cross-examination of witness Basao, the counsel for the defense only argued
with the witness as regards the reason for the latter’s acquittal. Thereafter, the defense counsel voluntarily
waived his right to further cross-examine the said witness with respect to
particular points of his testimony[32] which herein accused-appellant now
points to this Court as acomplete turn-around from said witness’ previous
testimony before the same court.
Where an allegedly inconsistent statement was not related to
the witness during the cross-examination and was never asked to explain the
same, it cannot later be used to discredit his entire testimony.[33] Naval v. Panday, 275 SCRA 654.33 For failure
to raise the same when the time was ripe to do so, the defense has defaulted
and waived its right to discredit the testimony of Basao. We have examined carefully the transcripts
but we fail to find any material inconsistency in the testimony of Gilbert
Basao that would impair his credibility and render his testimony unworthy of
credence.
Notwithstanding the defense counsel’s voluntary waiver to
further cross-examine Basao, the trial court conducted its own searching
questions of the latter. Despite the
questions posed, Basao remained steadfast in relating his eyewitness account of
the events that transpired before, during and after the incident when
accused-appellant successfully carried out his criminal design to kill Lt.
Faburada. Thus:
“COURT TO THE WITNESS:
Q After that .45
caliber pistol was taken from the body of Lt. Faburada, one ICOM Radio Handset
and a class ring, who carried those items?
A Pepe Iligan.
Q When you arrived at
Madrid was Pepe Iligan still holding these articles?
A Yes, sir.
Q When you parted
ways according to you, you went home at 9:00 o’clock in the morning, where were
these articles, 1 .45 caliber pistol, 1 ICOM Radio Handset and a class ring?
A Pepe Iligan.
Q Considering that
you were two (2) at the time when these articles were taken, did you not asked
(sic) for your share?
A No, sir because I
did not know the purpose when that was taken.
Q The next time when
you saw him at Guingona Subdivision at Butuan City did you see that caliber .45
pistol, ICOM Radio Handset, and the class ring?
A No, sir.
Q What did you find?
A Only a ring.
Q Do you have any
knowledge if the caliber .45 pistol was also pawned by Pepe Iligan?
A No, sir.
Q Did he not tell you
about the ICOM Radio Handset and the caliber .45 pistol?
A No, sir.
Q Tell the court
frankly, how did you know that the gun which was taken from Lt. Faburada is
caliber .45?
A I saw it when we were walking.
Q Where did he placed
(sic) that .45 caliber pistol?
A At his waist.
Q How about the ICOM
Radio Handset?
A At his waist also.
Q You testified that
Lt. Faburada was shot 6 to 8 meters away from Pepe Iligan, what was the
position of Pepe Iligan when he shot Lt. Faburada?
A He was facing and
pointing his gun to Lt. Faburada.
Q What position,
please demonstrate?
A (Witness was
pointing his firearm in horizontal position the barrel directing towards the
victim.)
Q When Pepe Iligan
visited you at Guingona Subdivision Butuan City did you have an agreement that
you will proceed to Butuan City and he will follow?
A No, sir. I was even surprised why he arrived there.
Q In that morning on
April 14, 1994 when he came to your house and invited you to go to Carrascal,
did he tell you the purpose in going to Carrascal?
A He told me that may
be we can make money in Carrascal.
Q From what source if
you can remember, tell the Court?
A He told me he is a
former worker at Ventura Timber Company he might me[e]t (sic) his friends
working at Ventura.
Q Tell the Court at
the time when you left your place, did you plan to kill Dra. Arlyn Faburada and
Lt. Joerlick Faburada?
A No, sir.
Q The Court observed
you the way you talk, and testified I am convinced that you are a friend of
Pepe Iligan, is that correct?
A Yes, sir.
Q Did Pepe Iligan
confided (sic) to you that he will kill somebody that is why you accompany him?
A No, sir because if
he told me I will not accompany him.
Q When you arrived at
Cantilan and stop at Caltex, did you not notice his unusual doing?
A No, sir.
Q Were you not
surprised why he was fully armed?
A No, sir because I know he was a CAFGU.
Q Was it the first
time he was in uniform?
A Yes, sir.
Q What prompted you
to testify against him considering that he is your friend?
A I was bothered by my
conscience that Lt. Joerlick Faburada and Dra. Arlyn Faburada will not be given
justice.
Q That amount which
was the proceeds of pawned ring, how much is your share?
A He did not give me
because I did not asked for it.
Q Did not your friend
told you that the reason he shot Faburada and his wife as a consequence because
he was hired by somebody to kill Faburada?
A No, sir.
I have no more questions.”[34]
Even though Basao may have deliberately failed to
immediately reveal or disclose accused-appellant’s identity when these cases
were tried against him, it is settled that such delay does not, by itself,
render such testimony less worthy of credence[35] especially where possible
reatliation from the accused could not be dismissed as merely fanciful, since
at that time accused-appellant was still at large. If the law and the rules of procedure do not
prohibit an accused who has been found guilty of a crime from qualifying as a
witness, there is no reason why Basao should be disqualified from testifying
against his co-accused because of his acquittal. We find no reason to doubt the narration of
Basao, who was present when the shooting occurred identifying herein
accused-appellant as the one responsible for the death of the Faburada spouses.
Reynaldo Angeles corroborated Basao’s testimony; Angeles
pawned the ring of Lt. Faburada upon the request of the accused-appellant, who
subsequently admitted to him that he fired at the Faburada spouses.
Under the second assignment of error, accused-appellant contends
that the signature of Reynaldo Angeles in the pawn ticket and in the redemption
receipt discredits the prosecution’s claim that accused-appellant is the
possessor of the ring and that he asked Angeles to pawn the same.
We are not persuaded.
In light of the testimony of witness Angeles satisfactorily explaining
his possession of the pawned ring, as corroborated by the testimony of witness
Basao, the contention of herein accused-appellant cannot be believed. Other than accused-appellant’s bare denials,
no satisfactory explanation or evidence was offered to controvert the positive
testimonies of witnesses Basao and Angeles before the trial court. As between the categorical testimony which
has a ring of truth on one hand and a bare denial on the other, the former is
generally held to prevail.[36] Accordingly, the positive testimony of Angeles
that the ring came from herein accused-appellant; and that Angeles was just
asked by the latter to pawn the ring must be upheld. At the witness stand, Angeles was resolute in
pointing to herein accused-appellant as the source of the ring he pawned at the
M-Lhuillier Pawnshop, viz:
“DIRECT EXAMINATION
ATTY. CAÑEDO:
x x x x x
x x x x
Q You said that you
were requested by who?
A Pepe Iligan.
Q Now, please tell
this Honorable Court what was then the reason why you were merely requested by
Pepe Iligan to go with them to Butuan City?
A When I was still in
the apartment I do not know what was their purpose.
COURT
Q You said you
personally know Pepe Iligan, how were you introduced with them when they
arrived at Padiay, Sibagat, Agusan del Sur?
A I was introduced by
my wife.
Q Why, is your wife
related to Pepe Iligan?
A Yes, sir.
Q Does Pepe Iligan
usually go to your house at Padiay, Sibagat, Agusan del Sur?
A He always go there
in the year 1992?
Q What is the
relationship of your wife and Pepe Iligan, if you know?
A Maybe they were
first cousins or third cousins because they have the same family name.
Proceed
ATTY. CAÑEDO
x x x x x
x x x x
Q When you arrived in
Butuan City at about 3:30 o’clock in the afternoon, what happened?
A We arrived at
Butuan City, Pepe Iligan gave me a ring and asked me “brod I have a ring you
will pawn this and you will be the one to sign the receipt”.
Q Did you agree with
the request of Pepe Iligan to pawn the ring?
A Yes, sir.
Q In what pawnshop
did you pawn the ring?
A M-Lhuillier
Pawnshop.
Q Showing to you that
particular ring can you still identify it?
A Yes, sir.
ATTY. CAÑEDO
I would
request your honor that aside from this ring there will be other ring shown to
this Witness so that to avoid further objection from the Defense.
x x x x x
x x x x
ATTY. CAÑEDO
Q We are now showing
to you Mr. Angeles a ring will you please try to examine this and tell this
Honorable Court what relation has this ring to the ring you mentioned earlier
that was pawn[ed] at M-Lhuillier Pawnshop in Butuan City?
(Witness is
trying to examine the ring by looking at the front side and the inner side of
the ring).
A This is the ring.
COURT
Q Why did you know
that, that is the said ring that you pawn in M-Lhuillier Pawnshop, Butuan City?
A there is a marking
inside and the outside.
Q What is the marking
inside?
A Joerlick Faburada.
Proceed.
ATTY. CAÑEDO
Q How about the
markings outside?
A PNP Academy.
x x x x x
x x x
x”[37]
“CROSS EXAMINATION
COURT
Q Who invited you to
go to Butuan City?
A Pepe Iligan.
Proceed.
ATTY. ARREZA
Q When Pepe Iligan
invited you to Butuan City, Gilbert Basao did not say anything?
A No, sir.
Q Did Gilbert Basao
followed (sic) you and Pepe Iligan to Butuan City?
A Yes, sir.
Q And when you
reached Butuan City you went to M-Lhuillier Pawnshop, am I right?
A Yes, sir.
x x x x x
x x x x
Q Up to the last
minute when you were already in the pawnshop Gilbert Basao did not say
anything?
A No, sir.
Q Because only as a
matter of fact it was only Pepe Iligan [who] talked to you?
A Yes, sir.
Q And he did not say
any word about the ring?
A Yes, sir.
Q And it was you who
did the talking about the pawning?
A Yes, sir.
Q So you controlled
the whole transactions?
A No, sir, when it
comes to the pawning I was the one who pawn [ed] the ring.
COURT
Q And where did that
ring come from?
A Pepe Iligan.
Proceed.
ATTY. ARREZA
Q And Pepe Iligan did
not say anything when you told him that who is the owner?
A No, sir.
Q And you did not try
to see the inner inscription of the ring?
A No, sir.
Q And you did not
also notice that in the outer portion of the ring there is a PNPA engrave[d] in
that ring?
A Of course I read
it.
COURT
Q When you say of
course “I read [it”] what have you seen”
A PNP Academy.
Q How about inside
the ring?
A I did not see the
inscription of the engrave when I pawn the ring.
Proceed.”[38]
“RE-DIRECT EXAMINATION
ATTY. CAÑEDO
Q Mr. Reynaldo
Angeles a while a go you said that when you were asked by the counsel of the
defense you said you were able to see and read the markings outside in this
ring and identified by you as the ring pawned by you at M-Lhuillier Pawnshop,
now please tell the Court at what point of time you were able to see and read
the inner markings of this ring.
ATTY. ARREZA
Objection,
your honor that is misleading?
COURT
Objection
overruled, witness may answer.
WITNESS
A At the time when we
already redeemed the ring together with the CIS team.
ATTY. CAÑEDO
Q What have you read
in the inner marking.
A Joerlick
Faburada.”[39]
Angeles thus positively identified the accused-appellant as
the person who gave the ring to him and who asked him to pawn the same ring of
the late Lt. Joerlick Faburada.
The accused-appellant failed to convincingly ascribe any
ill-motive on the part of Angeles, well enough to truly make him fabricate such
a serious imputation as that recited in his testimony. The defense counsel, even the accused-appellant
himself, could not impute any improper motive to the said witness during the
trial which might have impelled him to testify falsely, thus:
“Q And in fact you
were also testif[y]ing Mr. witness for the passed (sic) 6 months you never had
a quarrel with Reynaldo Angeles, is that correct?
A No sir.
Q And in fact Mr.
Pepe Iligan up to the very time that Reynaldo Angeles testified here in open
Court that you were the one who requested to pawn the ring to the pawnshop, the
ring of Joerlick Faburada and you never have an alter[c]ation with Reynaldo
Angeles, is that correct?
A No sir.
Q Do you know the
wife of Reynaldo Angeles?
A Yes sir.
Q What is the name of
the wife of Reynaldo Angeles?
A I forgot the name.
Q And in fact Mr.
Witness you will agree with me that the wife of Reynaldo Angeles is related to
your wife?
A Yes sir.
Q What is the
relation of your wife to the wife of Reynaldo Angeles?
A The mother of the
wife of Reynaldo Angeles is the brother of the father of my wife.
Q In short your wife
and the wife of Reynaldo Angeles is first degree cousin?
A Yes sir.
Q From the very time
you were with Reynaldo Angeles at brgy. Kolambugan, Agusan del Sur up to the
very time when Reynaldo Angeles pinpointed (to) you as the person who requested
to pawn the ring to the pawnshop is it not the wife of Reynaldo Angeles has a
good relation to your wife?
A Yes sir.
Q In fact Mr. Pepe
Iligan you cannot remember of any incident that your wife and the wife of
Reynaldo Angeles quarreled?
A No sir.
Q How about your
family and the family of Reynaldo Angeles, like the parents of your wife and
the parents of the wife of Reynaldo Angeles, do you know if they quarreled?
A No sir.
Q So that when
Reynaldo Angeles testified here, you will agree that there was no alter(c)ation
why he pointed (to) you as the person who requested him to pawn the ring, is
that correct?
A I did not know why
he pointed (to) me because I have not done wrong.
Q Was there any
incident that you filed a case against Reynaldo Angeles?
A No sir.
Q There was an
incident that Reynaldo Angeles filed a case against you?
A No sir.”[40]
Angeles’ testimony is entitled to credence.
The trial court also correctly held that the defense of
denial and alibi failed to pass the test of credibility. Accused-appellant failed to prove that his
presence at the place of the crime at the time it was committed was physically
impossible.[41] Alibi was not convincingly established.
First, accused-appellant’s testimony that on April 14, 1994,
the date when the crime took place, he was on duty the whole day in a
detachment in Gacub, Carmen, Surigao del Sur was not sufficient. Although alibi, like denial, is inherently weak and can be easily
fabricated,[42] it could also serve as basis for an acquittal if it could
really be shown by clear and convincing evidence that it was indeed physically
impossible for him to be at the crime scene at that time.[43] In this
case, the accused-appellant did not even reveal whether or not he had
companions when he was on duty, who could support his claim. There was no corroborative evidence (i.e.,
assignment order, log book showing his time of report and discharge, testimony
of a superior or other persons also assigned in said place, etc.) to
substantiate his claim that he was indeed in Gacub the whole day. Accused-appellants failure to present
witnesses who could have supported his claim tends to show that they would not
have corroborated his allegations had they testified.[44]
Moreover, accused-appellant failed to prove that the
distance between Gacub and the crime scene made it physically impossible for
him to be at the locus criminis at the time of its commission. For alibi to offset the evidence of the
prosecution demonstrating the guilt of an accused-appellant, the latter must
establish not only that he was somewhere else when the crime was committed but
also that it was physically impossible for him to have been at the scene of the
crime at the time it was committed.[45] It is not enough that the appellant
allege that he was somewhere else when the offense was committed for the
requisites of time and place must be strictly met.[46] Accordingly,
accused-appellant’s bare assertions cannot prevail over the positive testimony
of the prosecution’s principal witness, Gilbert Basao. For as between the self-serving testimony of
the accused and the positive identification by the prosecution witness, the
latter deserves greater credence.[47]
The testimony of Alfredo Yagao fails to impress us. As observed by the trial court, Alfredo Yagao offered conflicting
statements before the court. In
his affidavit submitted during the preliminary investigation against Gilbert
Basao and the herein accused-appellant, he claimed that he was at Gacub,
Hinapoyan, Carmen Surigao Del Sur from 12:00 o’clock up to 1:00 o’clock in the
afternoon while in his direct testimony given in open court he testified that
he was in Gacub from 8:00 o’clock a.m. up to 4:00 o’clock p.m. where he still
saw herein accused-appellant and his five companions.[48] Such omission in the
affidavit referred to a material point in accused-appellant’s defense of alibi
that one relating as an eyewitness would not be expected to fail to
mention. In such a case, both sworn
statements, before the court and in the affidavit, being contradictory statements
impeaches Yagao’s own credibility.[49]
Finally, the Court notes that on direct examination, the
accused-appellant claimed that he only learned about these cases when he was
arrested in 1996.[50] However, upon his cross-examination, he said that he was
asked to surrender his firearm by the Cadreman at the 67th Infantry Battalion
and was dropped from the rolls of the CAFGU’s in 1994 due to the pendency of
these cases against him; that when he went to Canlubang, Manila he was already
aware of these cases against him and he did not surrender to the authorities
for fear of being shot by them.[51] It would appear that after he was charged
for these offenses on August 30, 1994, he became a “fugitive from justice,”
i.e. one who after being charged, flees to avoid prosecution.[52] It is a well-entrenched doctrine
that an accused’s flight from the scene of the crime and his act of hiding
himself until he was arrested are circumstances highly indicative of his guilt,
for as has been wisely said, the wicked flee even when no man pursueth but the
righteous are as bold as a lion.[53] For a truly innocent person would normally grasp the first opportunity
to defend himself and to assert his innocence over a crime imputed against him.[54]
For the
death of Lt. Joerlick Faburada, subject of Criminal Case No. C-16, and Dra.
Arlyn Faburada, subject of Criminal Case No. C-15, the crime committed was
murder qualified by treachery or alevosia.
Treachery exists “when the offender commits any of the
crimes against person, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk
to himself arising from any defense which the offended party might make.”[55]
Settled is the rule that an unexpected
and sudden attack under circumstances which render the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the
attack, constitutes alevosia.[56] Alevosia is taken into account, even if the deceased was
face to face with his assailant(s), when the attack was so sudden and
unexpected that the victim was not in a position to offer an effective defense.[57]
In the instant case, the accused-appellant attacked Lt. Faburada while the
latter was manning his motorcycle which he (Lt. Faburada) and his wife was
riding. When the accused-appellant was
only about “six (6) to eight (8) meters away”[58] from the speeding motorcycle
he suddenly strafed them with his armalite rifle, attacking the Faburada spouses
while they were not in any position to offer an effective defense against their
aggressor. Both of these victims were
completely oblivious of any possible harm the accused-appellant would inflict
upon them.
The aggravating circumstance of treachery, in Criminal Case
No. C-15, was also properly appreciated by the trial court in the death of Dra.
Arlyn Faburada, the wife of Lt. Joerlick Faburada. For even assuming that accused-appellant only intended to kill Lt.
Joerlick Faburada, the treacherous nature of the attack was made in continuous
aggression that cannot be broken up to constitute a separate, distinct and
independent attack. The settled rule is
that in order to appreciate treachery in continuous aggression, the same must
be shown present at the inception of the attack,. as in this case.[59] Assuming that the real object of
the assault is Lt. Faburada and that the death of Arlyn was purely accidental
as a result of the accused-appellant’s firing of his M-16 rifle, it does not
modify the nature of the crime nor lessen accused-appellant’s criminal
liability under Article 4 paragraph 1 of the Revised Penal Code, to wit:
“Article 4. Criminal
Liability. -- Criminal Liability shall
be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different from that which he intended.”
Our ruling in People v. Guevarra,[60] is instructive:
“The crime committed by the appellant is murder qualified by
treachery. When he shot the victim,
appellant was well hidden behind a tree that the victim, who was unarmed and
unaware, had no way of defending himself.
Thus, appellant employed means, methods or forms to insure the execution
of the crime, without risk to himself.”
“As the appellant committed the act with intent to kill and
with treachery, the purely accidental circumstance that as a result of the
shots a person other than the one intended was killed, does not modify the
nature of the crime nor lessen his criminal responsibility, and he is
responsible for the consequences of his acts.”[61]
“The qualifying circumstance of treachery may be properly
considered, even when the victim of the attack was not the one whom the
defendant intended to kill, if it appears from the evidence that neither of the
two persons could in any manner put up defense against the attack or become
aware of it.”[62]
Also in People vs. Trinidad,[63] we have held that treachery
attended the commission of the felony even though the victim of the attack was
not the person whom accused-appellant intended to kill, thus:
“That another person, and not the victim, was the intended
victim is not incompatible with the existence of treachery. Treachery may be taken into account even if
the victim of the attack was not the person whom the accused intended to kill.”
We, however, disagree with the finding of the trial court that the aggravating
circumstance of evident premeditation attended the killing of the Faburada
spouses. Despite the established
fact that the victims were suddenly attacked, while riding a motorcycle without
the victims having an opportunity to defend themselves from such sudden attack,
the prosecution was not able to prove with clear and convincing evidence that
the aggravating circumstances of evident premeditation also attended the
commission of the crime in both Criminal Cases Nos. C-15 and C-16. This aggravating circumstance cannot be used to increase the penalty as
the prosecution failed to show when accused-appellant meditated and reflected
upon his decision to kill the victim and the intervening time that elapsed
before this plan was carried out.
The records and the transcripts of stenographic notes are barren of
positive evidence of any prior reflection on, followed after some time by
persistence in, the criminal resolution of the herein accused-appellant. Evident premeditation exists when the
following requisites are present:
1. The time when the
offender determined to commit the crime;
2. An act manifestly
indicating that the culprit has clung to his determination;
3. A sufficient lapse
of the time between the determination and execution, to allow him to reflect
upon the consequences of his act.[64]
While
the motive for the commission of the crime may be duly established it does not
constitute sufficient ground to consider the existence of evident premeditation.[65]
Motive may be used to
indicate the time when the offender determined to commit the crime and the
outward act manifestly indicating that the culprit has clung to such
determination. However, the fact of
motive alone is not sufficient to prove the most important element, the third
element, proof that sufficient lapse of time between the determination and the
execution intervened to allow the offender to reflect on the consequences of
his act.
To
warrant a finding of evident premeditation, it must appear not only that the
accused decided to commit the crime prior to the moment of its execution but
also that this decision was the result of meditation, calculation, reflection,
or persistent attempt.[66] In the case at bar, no evidence was presented
regarding the time when the accused-appellant planned to kill the victim, and
to show that he clung to his determination to kill the deceased, and that
sufficient time had elapsed between the determination and execution of the
crime to allow his conscience to overcome the resolution of his will. Settled is the rule that when it is not shown
as to how and when the plan to kill was hatched or what time had elapsed before
it was carried out, evident premeditation cannot be considered.[67]
The
aggravating circumstance of abuse of superior strength alleged in the
aforementioned two Informations for the death of the spouses Faburada is
already absorbed in the qualifying circumstance of alevosia or treachery so the
same need not be appreciated separately.[68]
The aggravating circumstance of “cruelty by deliberately and
inhumanly augmenting the suffering of the victim, outraging or scoffing at
his/her person,” cannot be appreciated, in both Criminal Cases Nos. C-15 and
C-16, for lack of sufficient basis in the evidence. Cruelty as an aggravating circumstance cannot be appreciated in the
absence of any showing that herein accused-appellant, for his pleasure and
satisfaction, caused the victim to suffer slowly and painfully and inflicted on
him unnecessary physical and moral pain.[69] The test in appreciating
cruelty as an aggravating circumstance is whether the accused-appellant
deliberately and sadistically augmented the wrong by causing another wrong not
necessary for its commission or inhumanly increased the victim’s suffering or
outraged or scoffed at his person or corpse.[70]
The
specific aggravating circumstance of “with insult or in disregard of the rank
of the offended party” alleged in Criminal Cases Nos. C-15 and C-16 is,
likewise, unavailing in both cases. The
prosecution failed to establish proof of the specific facts demonstrating that
the accused-appellant’s act of killing Lt. Joerlick Faburada and Dra. Arlyn
Faburada was deliberately intended to disregard or insult the respect due them
on account of their rank, age, or sex.
Although the trial court found that herein accused-appellant’s act of
killing the deceased Lt. Joerlick Faburada was motivated by his resentment at
the latters’ strict enforcement of the laws nonetheless, motive alone is not
sufficient to show that herein accused-appellant deliberately intended to
offend or insult the rank of the victim.
It is essential that the deliberate intent to offend or insult the rank
of the victim must be shown.[71] The aggravating circumstance of with insult or
in disregard due to rank is appreciated against an accused only when there is
proof of fact of disregard and deliberate intent to insult the rank of the
victim.[72] For the circumstances aggravating the penalty of an offense must be
proved as conclusively as the act itself, mere suppositions or presumptions
being insufficient to establish their presence.[73]
Likewise in Criminal Case No. C-15, for the death of Dra.
Arlyn Faburada; the same aggravating circusmtance cannot be appreciated since
no intent was established to demonstrate that accused-appellant inflicted such
harm by reason of her being a physician or her relative position in civil or
social life as a physician. For the aggravating circumstance of “with
insult or in disregard of the respect due the offended party on account of his
rank, age, or sex” to be appreciated, intent to deliberately cause injury by
reason of the rank, age, or sex of the victim must be indubitably
established.[74] We, therefore, find reason to reduce the death sentences imposed
by the trial court in Criminal Cases Nos. C-15, for the death of Dra. Arlyn
Faburada, and C-16, for the death of Lt. Joerlick Faburada. Murder is punishable under Article 248 (1) of
the Revised Penal Code, as amended by R.A. 7659, which provides:
“Article 248. Murder.
-- Any person who, not falling within
the provisions of Article 246 shall kill another, shall be guilty of murder and
shall be punished by reclusion perpetua to death if committed with any of the
following attendant circumstances:
1. With treachery,
taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or means of persons to insure or afford impunity.
2. x x x.
3. x x x.
4. x x x.
5. x x x.
6. x x x.”
In consonance with Article 63 of the Revised Penal Code, the
absence of any aggravating or mitigating circumstance justifies the application
of a lesser penalty, thus:
“Article
63. Rules for the application of
indivisible penalties.
“x x
x x x x x x x
In all
cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
1. x x x.
2. When there are neither mitigating nor
aggravating circumstances in the commission of the deed, the lesser penalty
shall be applied.
3. x x x.
4. x x x.”
Accordingly,
the penalty of reclusion perpetua, not death, should be meted upon herein
accused-appellant in both Criminal Cases Nos. C-15 and C-16.
We come now to the award of damages in both Criminal Cases
Nos. C-15 and C-16 which was just stipulated by both counsels for the heirs of
the two deceased and the counsel for herein accused-appellant.
With respect to Criminal Case C-15, for the death of Dra.
Arlyn Faburada, the amount of P100,000.00 for the burial and other expenses
incurred in connection therewith was stipulated upon and may be deemed
reasonable; the award of P50,000.00 as death indemnity is in accord with
established jurisprudence.[75]
However, the award of P500,000.00 as moral damages is
excessive and should be correspondingly reduced, bearing in mind that the
purpose for making such award is not to enrich the heirs of the victim but to
compensate them for injuries to their feelings.[76] Accordingly, an award of
P50,000.00 would be adequate and reasonable pursuant to established
jurisprudence.[77]
The award of P10,000.00 for exemplary damages cannot be
sustained pursuant to Article 2230 of the New Civil Code which provides that
exemplary damages may be imposed only when the crime is committed with one or
more aggravating circumstances.[78]
As regards Criminal Case No. C-16, pertaining to the death
of Lt. Joerlick Faburada, there is also a need to modify the award of damages
made by the trial court.
As in Civil Criminal Case No. C-15, the P500,000.00 award
for moral damages must be reduced to P50,000.00 only and the award of
P10,000.00 as exemplary damages should be deleted.
Likewise, the amount of P100,000.00 reimbursement for the
burial and incidental expenses was agreed upon by the prosecution and the heirs
of the deceased; the indemnity of P50,000.00 by reason of the death of Lt.
Joerlick Faburada is in order.
As regards Criminal Case No. C-14, the trial court held that
herein accused-appellant’s primary criminal intent was to kill the late Lt.
Joerlick Faburada because of his very strict enforcement of the laws in
Cantilan, Surigao del Sur and not to deprive the latter of his personal
belongings.[79] It concluded that herein accused-appellant was guilty of
robbery under Article 293 of the Revised Penal Code which provides:
“Article 293. Who are
guilty of robbery.-- Any person who,
with intent to gain, shall take any personal property belonging to another, by
means of violence against or intimidation of any person, or using force upon
anything, shall be guilty of robbery.”
There are only two ways in which the crime of robbery can be
committed: 1) by means of violence against or intimidation
of any person, or 2) by means of force
upon anything.[80] The evidence on record in this case is devoid of basis to
support the conclusion reached by the trial court that the crime committed is
robbery.
Our ruling in People v. Salazar[81] is doctrinal:
“if the original criminal design does not clearly comprehend
robbery, but robbery follows the homicide as an afterthought or as a minor
incident of the homicide, the criminal act should be viewed as constitutive of
two offenses and not of a single complex crime.
Robbery with homicide arises only when there is a direct relation, an
intimate connection, between the robbery and the killing, even if the killing
is prior to, concurrent with, or subsequent to the robbery.”
In the instant case, it is apparent that the taking of the personal
properties from the victim was an afterthought.
The personal properties were taken after accused-appellant has already
successfully carried out his primary criminal intent of killing Lt. Faburada
and the taking did not necessitate the use of violence or force upon the person
of Lt. Faburada nor force upon anything.
Thus, the crime is theft under Article 308 of the same Code which
provides, viz:
“Art. 308. Who are
liable for theft. - Theft is committed
by any person who, with intent to gain but without violence against or
intimidation of persons nor force upon things, shall take personal property of
another without the latter’s consent. x x x.”
Although
the crimes of robbery and theft under the Revised Penal Code have in common the
elements of (a) unlawful taking; (b) with intent to gain; (c) taking of
personal property; and (d) the property taken belongs to another, they differ
in the manner in which they are asported.
Considering that the victim was already heavily wounded when his
personal properties were taken, there was no need to employ violence against or
intimidation upon his person. Thus, in
Criminal Case No. C-14, accused-appellant can only be held guilty of the
separate offense of theft under Article 308, penalized under Article 309 of the
Revised Penal Code.
During the trial, the value of the stolen personal effects
was the subject of the testimony[82] of SPO4 Manuel L. Azarcon, Deputy Chief of
Cantilan, Surigao del Sur; who declared that his .45 caliber pistol was valued
at P36,000.00 to P40,000.00; the ICOM handset radio at P9,000.00 and the PNPA
gold ring at P8,000. Under the rule on
opinions of ordinary witnesses, it is a standing doctrine that the opinion of a
witness is admissible in evidence on ordinary matters known to all men of
common perception.[83] Here, the witness is not just an ordinary witness, but
virtually an expert, since his work as a Deputy Chief of Police has given him
the exposure to and experience in fixing the value of such ordinary police
paraphernalia. It is noted that during
the trial, the defense never cross-examined SPO4 Azarcon on these points. Such opportunity to cross-examine takes the
testimony of said witness out of the hearsay rule. The lack of objection by the counsel for the
defense to the value placed by the aforesaid witness gives credence to
Azarcon’s testimony.
Article 309, of the Revised Penal Code provides:
“Penalties. - Any
person guilty of theft shall be punished by:
1. The penalty of
prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the
value of the thing stolen exceed the latter amount, the penalty shall be the
maximum period of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may be
imposed shall not exceed twenty years.
In such cases, and for purposes of the other provisions of this Code,
the penalty shall be termed prison mayor or reclusion temporal, as the case may
be.”
Since the total value of the stolen property is P53,000.00
the accused-appellant should be meted the penalty of the maximum period of the
penalty prescribed by Article 309 which is the maximum of prision mayor in its
minimum and medium periods plus one year for each additional ten thousand pesos
in excess of P22,000.00.[84] Applying the Indeterminate Sentence Law, the
penalty for this particular offense of theft that may thus be imposed is
anywhere from two (2) years, four (4) months and one (1) day of prision
correcional minimum period to six (6) years of prision correcional maximum
period, as minimum, to anywhere from eight (8) years, eight (8) months and one
(1) day to ten (10) years of prision mayor medium period, plus three (3) years for
the additional P30,000.00 in excess of P22,000.00 value of the property taken,
or eleven (11) years of prision mayor maximum period, as maximum.
WHEREFORE,
the decision, dated December 10, 1996, of the Regional Trial Court of Cantilan,
Surigao del Sur (Branch 41) is AFFIRMED with the MODIFICATION that:
1. In Criminal Case No. C-14, accused-appellant
is found guilty beyond reasonable doubt of theft and is hereby sentenced to a
prison term of two (2) years, four (4) months and one (1) day of prision correcional
minimum period, as minimum, to eight (8) years, eight (8) months and one (1)
day of prision mayor plus three (3) years for the additional P30,000.00 in
excess of P22,000.00 value of the property taken, or a total of eleven (11)
years, eight (8) months and one (1) day, as maximum period and to pay the
amount of P45,000.00[85] as reparation
for the unrecovered stolen articles;
2. In Criminal Case No. C-15, accused-appellant
is found guilty beyond reasonable doubt of the crime of murder qualified by
treachery and is hereby sentenced to suffer the penalty of reclusion perpetua;
he is also ordered to pay the heirs of the victim:
a)
Death indemnity - P50,000.00
b)
Moral damages - P50,000.00
c)
Actual damages - P100,000.00
3. In Criminal Case No. C-16, accused-appellant
is found guilty beyond reasonable doubt of the crime of murder qualified by
trechery and is hereby sentenced to suffer the penalty of reclusion perpetua;
he is also ordered to pay the heirs of the victim:
a)
Death indemnity - P 50,000.00
b)
Moral damages - P 50,000.00
c)
Actual damages - P100,000.00
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, and
Ynares-Santiago, JJ., concur.
