G.R. No. 165483
September 12, 2006
RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
CHICO-NAZARIO, J.:
For what is a man, what has he got?
If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!
The song evokes the bitterest passions. This is not the
first time the song "My Way"2 has triggered violent behavior
resulting in people coming to blows. In the case at bar, the few lines of the
song depicted what came to pass when the victims and the aggressors tried to
outdo each other in their rendition of the song.
In this Petition for Review on Certiorari3 under Rule 45 of
the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the
reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated
30 September 2004,4 affirming with modification the Decision of the Regional
Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No.
U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5finding
petitioner guilty beyond reasonable doubt of the crime of Homicide under
Article 249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide
under Article 249 in relation to Articles 6 and 50 of the same Code.
On 21 April 1998, petitioner and his older brother,
Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate
Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder,
and one (1) count for Violation of COMELEC Resolution No. 29587 relative to
Article 22, Section 261, of the Omnibus Election Code,8allegedly committed as
follows:
CRIMINAL
CASE NO. U-9608
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y
Juanatas, inflicting upon him "gunshot wound penetrating perforating
abdomen, urinary bladder, rectum bullet sacral region," the accused having
thus performed all the acts of execution which would have produced the crime of
Murder as a consequence, but which nevertheless, did not produce it by reason
of the causes independent of the will of the accused and that is due to the
timely medical assistance rendered to said Servillano J. Ferrer, Jr. which
prevented his death, to his damage and prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of
the Revised Penal Code, as amended.
CRIMINAL
CASE NO. U-9609
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias
"Boying Ferrer", inflicting upon him gunshot wound on the right
shoulder, the accused having thus performed all the acts of execution which
would have produced the crime of murder as a consequence, but which
nevertheless, did not produce it by reason of the causes independent of the
will of the accused and that is due to the medical assistance rendered to said
Michael "Boying" Ferrer which prevented his death, to his damage and
prejudice.
CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of
the Revised Penal Code, as amended.
CRIMINAL
CASE NO. U-9610
That on or about January 16, 1998, in the evening at
Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable
Court, the above-named accused armed with an unlicensed firearm, with intent to
kill, treachery and evident premeditation, conspiring together, did then and
there willfully, unlawfully and feloniously shoot MELTON FERRER alias
"TONY FERRER", inflicting upon him mortal gunshot wounds in the head
and right thigh which caused the instantaneous death of said Melton
"Tony" Ferrer, to the damage and prejudice of his heirs.
CONTRARY to Art. 248 of the Revised Penal Code, as amended
by R.A. 7659.
CRIMINAL
CASE NO. U-9634
That on or about January 16, 1998 which is within the
election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction
of this Honorable Court, the above-named accused did then and there willfully,
unlawfully and feloniously bear and carry one (1) caliber .38 without first
securing the necessary permit/license to do the same.
CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of
the OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.)
When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of
"Not Guilty." Upon motion of Ferdinand,11 the four cases were
consolidated and were assigned to Branch 46 of the RTC in Urdaneta,
Pangasinan.12
The factual antecedents as viewed by the prosecution, are
summarized in the Comment dated 18 April 2005 of the Office of the Solicitor
General,13 to wit:
On January
16, 1998, around 8:00
in the evening, brothers
Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking
spree in their house because [Melton], who was already living in San Fernando,
La Union, visited his three brothers and mother at their house in Sitio
Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three
brothers decided to proceed to Tidbits Videoke bar located at the corner
of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing.
Inside the karaoke bar, they were having a good time, singing and drinking
beer.
Thereafter,
at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand
Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were
the customers in the bar. The two groups occupied separate tables. Later, when
Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was
familiar with the song [My Way]. Jaime however, resented this and went near the
table of the Ferrer brothers and said in Pangasinan dialect "As if you are
tough guys." Jaime further said "You are already insulting me in that
way." Then, Jaime struck Servillano Ferrer with the microphone, hitting
the back of his head. A rumble ensued between the Ferrer brothers on the
one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the
place. During the rumble, Ferdinand went out of the bar. He was however pursued
by Michael. When Servillano saw Michael, he also went out and told the latter
not to follow Ferdinand. Servillano and Michael then went back inside the bar
and continued their fight with Jaime.
Meantime,
Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified
them. Servillano noticed that his wristwatch was missing. Unable to locate the
watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand
about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at
them and said to his companion, later identified as petitioner [Rujjeric]
Palaganas, "Oraratan paltog mo lara", meaning "They are the
ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of
the abdomen, causing him to fall on the ground, and followed by [Melton] who
also fell to the ground. When Servillano noticed that [Melton] was no longer
moving, he told Michael "Bato, bato." Michael picked up some stones
and threw them at petitioner and Ferdinand. The latter then left the place.
Afterwards, the police officers came and the Ferrer brothers were brought to the
Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later
discovered that [Melton] was fatally hit in the head while Michael was hit in
the right shoulder.
On the other hand, the defense, in its Appellant's Brief
dated 3 December 1999,14 asserted the following set of facts:
On January 16, 1998, at around 11:00 in the evening, after a
drinking session at their house, the brothers Melton (Tony), Servillano (Junior)
and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits
Café and Videoke Bar and started drinking and singing. About thirty minutes
later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend
Virgilio Bautista arrived at the bar and occupied a table near that of the
Ferrers'.
After the Ferrers' turn in singing, the microphone was
handed over to Jaime Palaganas, who then started to sing. On his third song [My
Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an
obviously mocking manner. This infuriated Jaime, who then accosted Tony,
saying, "You are already insulting us." The statement resulted in a
free for all fight between the Ferrers', on one hand, and the Palaganases on
the other. Jaime was mauled and Ferdinand, was hit on the face and was chased
outside of the bar by Junior and Boying Ferrer.
Ferdinand then ran towards the house of the appellant
Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric,
stirred from his sleep by his brother's shouts, went out of his house and,
noticing that the van of his uncle was in front of the Tidbits Videoke Bar,
proceeded to that place. Before reaching the bar, however, he was suddenly
stoned by the Ferrer brothers and was hit on different parts of his body, so he
turned around and struggled to run towards his house. He then met his brother,
Ferdinand, going towards the bar, so he tugged him and urged him to run towards
the opposite direction as the Ferrer brothers continued pelting them with large
stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on
instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired
one shot in the air to force the brothers to retreat. Much to his surprise,
however, the Ferrer brothers continued throwing stones and when (sic) the
appellant was again hit several times. Unable to bear the pain, he closed his
eyes and pulled the trigger.
On 28 October 1998, the trial court rendered its Decision
finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated
Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in
relation to Section 261 of the Omnibus Election Code.16 On the other
hand, Ferdinand was acquitted
of all the charges against him.17
In holding that petitioner is liable for the crimes of
Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the
trial court explained that there
was no conspiracy between petitioner and Ferdinand in killing Melton and
wounding Servillano and Michael.18 According to the trial court, the
mere fact that Ferdinand "pointed" to where the Ferrer brothers were
and uttered to petitioner "Araratan, paltog mo lara!" (They are the
ones, shoot them!), does not in itself connote common design or unity of
purpose to kill. It also took note of the fact that petitioner was never a
participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on
the night of 16 January 1998. He was merely called by Ferdinand to rescue their
uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated
that the shooting was instantaneous and without any prior plan or agreement
with Ferdinand to execute the same. It found that petitioner is solely liable
for killing Melton and for wounding Servillano and Michael, and that Ferdinand
is not criminally responsible for the act of petitioner.
Further, it declared that there was no treachery that will
qualify the crimes as murder and frustrated murder since the Ferrer brothers
were given the chance to defend themselves during the shooting incident by
stoning the petitioner and Ferdinand.19 It reasoned that the sudden and
unexpected attack, without the slightest provocation on the part of the
victims, was absent. In addition, it ratiocinated that there was no evident
premeditation as there was no sufficient period of time that lapsed from the
point where Ferdinand called the petitioner for help up to the point of the
shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the
time he heard Ferdinand calling him for help. Immediately, petitioner, still
clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand.
Thereafter, both petitioner and Ferdinand went to the videoke bar where they
met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other
words, according to the trial court, the sequence of the events are so fast
that it is improbable for the petitioner to have ample time and opportunity to
then plan and organize the shooting.
Corollarily, it also stated that petitioner cannot
successfully invoke self-defense since there was no actual or imminent danger
to his life at the time he and Ferdinand saw the Ferrer brothers outside the
videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer
brothers outside the videoke bar, the latter were not carrying any weapon.
Petitioner then was free to run or take cover when the Ferrer brothers started
pelting them with stones. Petitioner, however, opted to shoot the Ferrer
brothers. It also stated that the use by petitioner of a gun was not a
reasonable means to prevent the attack of the Ferrer brothers since the latter
were only equipped with stones, and that the gun was deadlier compared to
stones. Moreover, it also found that petitioner used an unlicensed firearm in
shooting the Ferrer brothers.22
As regards the Violation of COMELEC Resolution No. 2958, in
relation to Section 261 of the Omnibus Election Code, the trial court acquitted
the petitioner of the offense as his use and possession of a gun was not for
the purpose of disrupting election activities.23 In conclusion, the trial court
held:
WHEREFORE, JUDGMENT is hereby rendered as follows:
1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby
CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with
the use of an unlicensed firearm. The penalty imposable is in its maximum
period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer
the penalty of Reclusion Temporal in its maximum period or 20 years of
imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as
actual medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages
representing unearned income of [MELTON]; P50,000.00 for the death of [MELTON];
P50,000.00 for exemplary damages and P100,000.00 for burial and funeral
expenses.
Ferdinand Palaganas is hereby ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court
sentences him to suffer the penalty of Prision Mayor in its maximum period or
12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90
for his medical expenses andP50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the prosecution
to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand
Palaganas beyond reasonable doubt.
3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is
hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
(Not Frustrated Murder), with the use of an unlicensed firearm, the Court
sentences him to suffer the penalty of Prision Mayor in its maximum period or
12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for
his medical expenses and P50,000.00 for exemplary damages;
Ferdinand Palaganas is ACQUITTED for failure of the
prosecution to prove conspiracy and likewise, for failure to prove the guilt of
Ferdinand Palaganas beyond reasonable doubt.
Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena
Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as
attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.
4. Under CRIM. CASE NO. U-9634, for failure of the
prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt
of the crime of Violation of COMELEC Resolution No. 2958 in relation with
Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC]
PALAGANAS.24
Aggrieved, the petitioner appealed the foregoing Decision of
the RTC dated 28 October 1998, before the Court of Appeals. In its Decision
dated 30 September 2004, the Court of Appeals affirmed with modifications the
assailed RTC Decision. In modifying the Decision of the trial court, the
appellate court held that the mitigating circumstance of voluntary surrender
under Article 13, No. 7, of the Revised Penal Code should be appreciated in
favor of petitioner since the latter, accompanied by his counsel, voluntarily
appeared before the trial court, even prior to its issuance of a warrant of arrest
against him.25 It also stated that the Indeterminate Sentence Law should be
applied in imposing the penalty upon the petitioner.26 The dispositive portion
of the Court of Appeals' Decision reads:
WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the
MODIFICATION that the penalty to be imposed for the crimes which the appellant
committed are as follows:
(1) For Homicide (under Criminal Case No. U-9610), the
appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporalas
maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil
indemnity in the amount ofP50,000.00, moral damages in the amount of P50,000.00
without need of proof and actual damages in the amount of P43,556.00.
(2) For Frustrated Homicide (under Criminal Case No.
U-9609), the appellant is hereby ordered to suffer imprisonment of four (4)
years and two (2) months of prision correcional as minimum to ten (10) years ofprision
mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual
damages in the amount ofP2,259.35 and moral damages in the amount of
P30,000.00.
(3) For Frustrated Homicide (under Criminal Case No.
U-9608), the appellant is hereby penalized with imprisonment of four (4) years
and two (2) months of prision correcional as minimum to ten (10) years
ofprision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer
actual damages in the amount of P163,569.90 and moral damages in the amount of
P30,000.00.27
On 16 November 2004, petitioner lodged the instant Petition
for Review before this Court on the basis of the following arguments:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
JUDGMENT OF CONVICTION OF THE TRIAL COURT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING
ACCUSED-APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE.28
Anent the first issue, petitioner argued that all the elements of a valid
self-defense are present in the instant case and, thus, his acquittal on all
the charges is proper; that when he fired his gun on that fateful night, he was
then a victim of an unlawful aggression perpetrated by the Ferrer brothers;
that he, in fact, sustained an injury in his left leg and left shoulder caused
by the stones thrown by the Ferrer brothers; that the appellate court
failed to consider a material evidence described as "Exhibit O"; that
"Exhibit O" should have been given due weight since it shows that
there was slug embedded on the sawali wall near the sign "Tidbits Café and
Videoke Bar"; that the height from which the slug was taken was about
seven feet from the ground; that if it was true that petitioner and Ferdinand
were waiting for the Ferrer brothers outside the videoke bar in order to shoot
them, then the trajectory of the bullets would have been either straight or
downward and not upward considering that the petitioner and the Ferrer brothers
were about the same height (5'6"-5'8"); that the slug found on the
wall was, in fact, the "warning shot" fired by the petitioner; and,
that if this exhibit was properly appreciated by the trial court, petitioner
would be acquitted of all the charges.29
Moreover, petitioner contended that the warning shot proved
that that the Ferrer brothers were the unlawful aggressors since there would
have been no occasion for the petitioner to fire a warning shot if the Ferrer
brothers did not stone him; that the testimony of Michael in the trial court
proved that it was the Ferrer brothers who provoked petitioner to shoot them; and
that the Ferrer brothers pelted them with stones even after the "warning
shot."30
Petitioner's contention must fail.
Article 11, paragraph (1), of the Revised Penal Code
provides for the elements and/or requisites in order that a plea of
self-defense may be validly considered in absolving a person from criminal
liability, viz:
ART.
11. Justifying circumstances. – The following do not incur any criminal
liability:
1.
Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;
First.
Unlawful aggression;
Second.
Reasonable necessity of the means employed to prevent or repel it;
Third.
Lack of sufficient provocation on the part of the person defending himself. x x
x.
As an element of self-defense, unlawful aggression refers to
an assault or attack, or a threat thereof in an imminent and immediate manner,
which places the defendant's life in actual peril.31 It is an act positively
strong showing the wrongful intent of the aggressor and not merely a
threatening or intimidating attitude.32 It is also described as a sudden and
unprovoked attack of immediate and imminent kind to the life, safety or rights
of the person attacked.33
There is an unlawful aggression on the part of the victim
when he puts in actual or imminent peril the life, limb, or right of the person
invoking self-defense. There must be actual physical force or actual use of
weapon.34 In order to constitute unlawful aggression, the person attacked must
be confronted by a real threat on his life and limb; and the peril sought to be
avoided is imminent and actual, not merely imaginary.35
In the case at bar, it is clear that there was no unlawful aggression on the
part of the Ferrer brothers that justified the act of petitioner in shooting
them. There were no actual or imminent danger to the lives of petitioner
and Ferdinand when they proceeded and arrived at the videoke bar and saw
thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the
videoke bar and were not carrying any weapon when the petitioner arrived
with his brother Ferdinand and started firing his gun.36
Assuming,
arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by
pelting the latter with stones, the shooting of the Ferrer brothers is still
unjustified. When the Ferrer brothers started throwing stones, petitioner was
not in a state of actual or imminent danger considering the wide distance (4-5
meters) of the latter from the location of the former.37 Petitioner was
not cornered nor trapped in a specific area such that he had no way out, nor
was his back against the wall. He was still capable of avoiding the stones by running away or by
taking cover. He
could have also called or proceeded to the proper authorities for help.
Indeed, petitioner had several options in avoiding dangers to his life other
than confronting the Ferrer brothers with a gun.
The fact that petitioner sustained injuries in his left leg
and left shoulder, allegedly caused by the stones thrown by the Ferrer
brothers, does not signify that he was a victim of unlawful aggression or that
he acted in self-defense.38There is no evidence to show that his wounds were so
serious and severe. The superficiality of the injuries sustained by the
petitioner is no indication that his life and limb were in actual peril.39
Petitioner's assertion that, despite the fact that he fired
a warning shot, the Ferrer brothers continued to pelt him with stones,40 will
not matter exonerate him from criminal liability. Firing a warning shot was not
the last and only option he had in order to avoid the stones thrown by the
Ferrer brothers. As stated earlier, he could have run away, or taken cover, or
proceeded to the proper authorities for help. Petitioner, however, opted to
shoot the Ferrer brothers.
It is
significant to note that the shooting resulted in the death of Melton, and
wounding of Servillano and Michael. With regard to Melton, a bullet hit his
right thigh, and another bullet hit his head which caused his instant
death.41As regards Servillano, a bullet penetrated two of his vital organs,
namely, the large intestine and urinary bladder.42 He underwent two (2)
surgeries in order to survive and fully recover.43 Michael, on the other hand,
sustained a gunshot wound on the right shoulder.44 It must also be noted that the
Ferrer brothers were shot near the videoke bar, which contradict petitioner's
claim he was chased by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the Ferrer brothers were the
unlawful aggressors. As correctly observed by the prosecution, if the
petitioner shot the Ferrer brothers just to defend himself, it defies reason
why he had to shoot the victims at the vital portions of their body, which even
led to the death of Melton who was shot at his head.45 It is an oft-repeated
rule that the nature and number of wounds inflicted by the accused are
constantly and unremittingly considered important indicia to disprove a plea of
self-defense.46
Let it not be forgotten that unlawful aggression is a primordial element in
self-defense.47 It is an essential and indispensable requisite, for without
unlawful aggression on the part of the victim, there can be, in a jural
sense, no complete or incomplete self-defense.48 Without unlawful aggression,
self-defense will not have a leg to stand on and this justifying circumstance
cannot and will not be appreciated, even if the other elements are present.49
To our mind, unlawful aggression, as an element of self-defense, is wanting in
the instant case.
The second element of self-defense requires that the means
employed by the person defending himself must be reasonably necessary to
prevent or repel the unlawful aggression of the victim. The reasonableness of
the means employed may take into account the weapons, the physical condition of
the parties and other circumstances showing that there is a rational
equivalence between the means of attack and the defense.50 In the case at bar,
the petitioner's act of shooting the Ferrer brothers was not a reasonable and
necessary means of repelling the aggression allegedly initiated by the Ferrer
brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to
the stones thrown by the Ferrer brothers.51
Moreover, we stated earlier that when the Ferrer brothers
allegedly threw stones at the petitioner, the latter had other less harmful
options than to shoot the Ferrer brothers. Such act failed to pass the test of
reasonableness of the means employed in preventing or repelling an unlawful
aggression.
With regard to the second issue, petitioner asserts that the
Court of Appeals erred in not acquitting him on the ground of lawful
self-defense.
Petitioner's argument is bereft of merit.
In resolving criminal cases where the accused invokes
self-defense to escape criminal liability, this Court consistently held that
where an accused admits killing the victim but invokes self-defense, it is
incumbent upon the accused to prove by clear and convincing evidence that he
acted in self-defense.52 As
the burden of evidence is shifted on the accused to prove all the elements of
self-defense, he must rely on the strength of his own evidence and not on the
weakness of the prosecution.53
As we have already found, there was no unlawful aggression
on the part of the Ferrer brothers which justified the act of petitioner in
shooting them. We also ruled that even if the Ferrer brothers provoked the
petitioner to shoot them, the latter's use of a gun was not a reasonable means
of repelling the act of the Ferrer brothers in throwing stones. It must also be
emphasized at this point that both the trial court and the appellate court
found that petitioner failed to established by clear and convincing evidence
his plea of self-defense. In this regard, it is settled that when the trial court's
findings have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court.54 In the present case, we find no
compelling reason to deviate from their findings. Verily, petitioner failed to
prove by clear and convincing evidence that he is entitled to an acquittal on
the ground of lawful self-defense.
On another point, while we agree with the trial court and
the Court of Appeals that petitioner is guilty of the crime of Homicide for the
death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the
serious injuries sustained by Servillano in Criminal Case No. U-9608, we do
not, however, concur in their ruling that petitioner is guilty of the crime of
Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We hold
that petitioner therein is guilty only of the crime of Attempted Homicide.
Article 6 of the Revised Penal Code states and defines the
stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. –
Consummated felonies, as well as those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements necessary for
the for its execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce the felony
as a consequence but which, nevertheless, do not produce it by reason or causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance (italics supplied).
Based on the foregoing provision, the distinctions between
frustrated and attempted felony are summarized as follows:
1.) In
frustrated felony, the offender has performed all the acts of execution which
should produce the felony as a consequence; whereas in attempted felony, the
offender merely commences the commission of a felony directly by overt acts and
does not perform all the acts of execution.
2.) In
frustrated felony, the reason for the non-accomplishment of the crime is some
cause independent of the will of the perpetrator; on the other hand, in
attempted felony, the reason for the non-fulfillment of the crime is a cause or
accident other than the offender's own spontaneous desistance.
In
addition to these distinctions, we have ruled in several cases that when the
accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault, and his victim sustained fatal or mortal wound/s but did
not die because of timely medical assistance, the crime committed is frustrated
murder or frustrated homicide depending on whether or not any of the qualifying
circumstances under Article 249 of the Revised Penal Code are present.55
However, if the wound/s sustained by the victim in such a case were not fatal
or mortal, then the crime committed is only attempted murder or attempted homicide.56
If there was no intent to kill on the part of the accused and the wound/s
sustained by the victim were not fatal, the crime committed may be serious,
less serious or slight physical injury.57
Based on the medical certificate of Michael, as well as the
testimony of the physician who diagnosed and treated Michael, the latter was
admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a
single gunshot wound in his right shoulder caused by the shooting of
petitioner.58 It was also stated in his medical certificate that he was
discharged on the same day he was admitted and that the treatment duration for
such wound would be for
six to eight days only.59 Given these set of undisputed facts, it is
clear that the gunshot wound sustained by Michael in his right shoulder was not
fatal or mortal since the treatment period for his wound was short and he was
discharged from the hospital on the same day he was admitted therein.
Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in
Criminal Case No. U-9609.
With regard to the appreciation of the aggravating
circumstance of use of an
unlicensed firearm, we agree with the trial court and the appellate
court that the same must be applied against petitioner in the instant case
since the same was alleged in the informations filed against him before the RTC
and proven during the trial. However, such must be considered as a special aggravating circumstance,
and not a generic aggravating circumstance.
Generic
aggravating circumstances are those that generally apply to all crimes such as
those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18,
19 and 20, of the Revised Penal Code. It has the effect of increasing the
penalty for the crime to its maximum period, but it cannot increase the same to
the next higher degree. It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated.60
Moreover, it can be offset by an ordinary mitigating circumstance.
On the other hand, special aggravating circumstances are
those which arise under special conditions to increase the penalty for the
offense to its maximum period, but the same cannot increase the penalty to the
next higher degree. Examples are quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code. It does not change the
character of the offense charged.61 It must always be alleged and charged in
the information, and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating
circumstance.
It is clear from the foregoing that the meaning and effect
of generic and special aggravating circumstances are exactly the same except
that in case of generic aggravating, the same CAN be offset by an ordinary
mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by
an ordinary mitigating circumstance.
Aside from the aggravating circumstances abovementioned,
there is also an aggravating circumstance provided for under Presidential
Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special
law. Its pertinent provision states:
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.
In interpreting the same provision, the trial court reasoned
that such provision is "silent as to whether it is generic or
qualifying."65 Thus, it ruled that "when the law is silent, the same
must be interpreted in favor of the accused."66Since a generic aggravating
circumstance is more favorable to petitioner compared to a qualifying
aggravating circumstance, as the latter changes the nature of the crime and
increase the penalty thereof by degrees, the trial court proceeded to declare
that the use of an unlicensed firearm by the petitioner is to be considered
only as a generic aggravating circumstance.67 This interpretation is erroneous
since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997,
the use of an unlicensed firearm in murder or homicide is now considered as a
SPECIAL aggravating circumstance and not a generic aggravating circumstance.68
Republic Act No. 8294 applies to the instant case since it took effect before
the commission of the crimes in 21 April 1998. Therefore, the use of an
unlicensed firearm by the petitioner in the instant case should be designated
and appreciated as a SPECIAL aggravating circumstance and not merely a generic
aggravating circumstance.
As was previously established, a special aggravating
circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary
surrender of petitioner in this case is merely an ordinary mitigating circumstance.
Thus, it cannot offset the special aggravating circumstance of use of
unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised
Penal Code, the penalty imposable on petitioner should be in its maximum
period.69
As regards the civil liability of petitioner, we deem it
necessary to modify the award of damages given by both courts.
In Criminal Case No. U-9610 for Homicide, we agree with both
courts that the proper amount of civil indemnity isP50,000.00, and that the
proper amount for moral damages is P50,000.00 pursuant to prevailing
jurisprudence.70However, based on the receipts for hospital, medicine, funeral
and burial expenses on record, and upon computation of the same, the proper
amount of actual damages should be P42,374.18, instead of P43,556.00. Actual
damages for loss of earning capacity cannot be awarded in this case since there
was no documentary evidence to substantiate the same.71 Although there may be
exceptions to this rule,72 none is availing in the present case. Nevertheless,
since loss was actually established in this case, temperate damages in the
amount ofP25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article
2224 of the New Civil Code, temperate or moderate damages may be recovered when
the court finds that some pecuniary loss was suffered but its amount cannot be
proved with certainty. Moreover, exemplary damages should be awarded in this
case since the presence of special aggravating circumstance of use of
unlicensed firearm was already established.73 Based on prevailing
jurisprudence, the award of exemplary damages for homicide is P25,000.00.74
In Criminal Cases No. U-9608 and U-9609, we agree with both
courts as to the award of actual damages and its corresponding amount since the
same is supported by documentary proof therein. The award of moral damages is
also consistent with prevailing jurisprudence. However, exemplary damages
should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established. Based on
prevailing jurisprudence, the award of exemplary damages for both the attempted
and frustrated homicide shall beP25,000.00 for each.
WHEREFORE, premises considered, the decision of the Court of
Appeals dated 30 September 2004 is herebyAFFIRMED with the following MODIFICATIONS:
(1) In Criminal
Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The
penalty imposable on the petitioner is prision correccional under Article 51 of
the Revised Penal Code.75 There
being a special aggravating circumstance of the use of an unlicensed firearm
and applying the Indeterminate Sentence of Law, the penalty now becomes four
(4) years and two (2) months of arresto mayor as minimum period to six (6)
years of prision correccional as maximum period. As regards the civil
liability of petitioner, the latter is hereby ordered to pay Michael Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual damages
and moral damages awarded by the Court of Appeals.
(2) In Criminal
Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is
prision mayor under Article 50 of the Revised Penal Code.76 There being a special
aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now becomes six (6) years ofprision
correccional as minimum period to twelve (12) years of prision mayor as maximum
period. As regards the civil liability of petitioner, the latter is
hereby ordered to pay Servillano Ferrer exemplary damages in the amount
ofP25,000.00 in addition to the actual damages and moral damages awarded by the
Court of Appeals.
(3) In Criminal
Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal
under Article 249 of the Revised Penal Code.77 There being a special aggravating circumstance of the use
of an unlicensed firearm and applying the Indeterminate Sentence Law, the
penalty now is twelve (12) years of prision mayor as minimum period to twenty
(20) years of reclusion temporal as maximum period. As regards the civil
liability of petitioner, the latter is hereby ordered to pay Melton Ferrer
exemplary damages in the amount ofP25,000.00 in addition to the actual damages
and moral damages awarded by the Court of Appeals. The actual damages likewise
awarded by the Court of Appeals is hereby reduced to P42,374.18.
SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago,
Austria-Martinez, Callejo, Sr., J.J., concur.
