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Accused-appellant Arnel B. Bernal seeks reversal of the judgment of conviction promulgated by Branch 2 of the Regional Trial Court of the First Judicial Region stationed in Bangued, Abra, on November 4, 1997, sentencing him to death for the crime of Murder with the aggravating circumstances of evident premeditation and habitual drunkenness, and likewise separately sentencing him to suffer the prison terms of 10 years and 1 day of prision mayor as minimum to 17 years of reclusion temporal as maximum for the crime of Illegal Possession of Firearms and Ammunition (Presidential Decree No. 1866), and 2 years and 4 months with disqualification from holding public office and deprivation of the right of suffrage for violation of Resolution No. 2735 of the COMELEC otherwise known as the “Gun Ban.”

The criminal cases were commenced with the filing of three informations for the crime of murder, and violations of Presidential Decree No. 1866 and Resolution No. 2735 of the COMELEC, pertinently reading as follows:

Criminal Case No. 1645

“That on or about February 6, 1995, at Zone 5, in the Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above named accused, with the intent to kill, with treachery and evident premeditation and while armed with a caliber .38 revolver Smith and Wesson without serial number (rcovered) (sic), did then and there, willfully, unlawfully and feloniusly (sic) shot twice from behind one PEDRITO BERALAS, hitting him on his head, which caused his death shortly thereafter, to the damage and prejudice of the heirs of the offended party.”

CONTRARY TO LAW.^[1]

Criminal Case No. 1647

“That on or about the 6th day of February, 1995, at around 9:30 o’clock in the evening, in the Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the said accused, not authorize, by law, did then and there, wilfully, unlawfully and feloniously, kept in his possession, custody and direct control one caliber 38 Revolver Smith and Session (sic) without serial number with three (3) live ammunitions for caliber .38 revolver and two (2) empty shells for caliber .38 (recovered), without first securing the necessary license to possess the daid (sic) firearms and without lawful permit to carry the same; that the offense was also committed during the election period in violation of firearm ban.”

CONTRARY TO LAW.^[2]

Criminal Case No. 1646

“That on or about February 6, 1995, at around 9:30 o’clock in the evening, at Zone 5, Philippines and within the jurisdiction of this honorable Court, the said accused, person not authorized by law, did then and there, willfully, unlawfully and feloniously keep in his possession, custody and control one (1) caliber .38 Smith and Wesson without serial number with three (3) live ammunition for caliber .38 revolver and two (2) empty shells for caliber .38 revolver (recovered), without first securing the necessary permit from the COMELEC to carry the same outside his residence.”

SO ORDERED.^[3]

Upon arraignment, accused-appellant pleaded not guilty. Thereafter, the cases were tried jointly.

The inculpatory facts adduced by the prosecution during trial are succinctly summarized in the People’s brief as follows:

In the evening of February 6, 1995, appellant, Pedrito Beralas, Felix Bernal, Fernando Bernal and Rey Bernal were on board a tricycle on their way to the Benedisco pub house located along Zamora St., Zone 5, Bangued, Abra (p. 3, Decision). Upon reaching the pub house, Pedrito invited the group to go inside to dance. Pedrito, Rey and Arnel went inside while Felix and Fernando were left outside (pp. 10-13, TSN, September 18, 1995).

Later, Fernando went inside to look for the three (appellant, Rey and Pedrito). He saw them in a sleeping position inside Benedisco. Upon seeing the three (appellant, Rey and Pedrito), Fernando returned to where Felix was and told him to start the tricycle engine as they would bring home appellant, Rey and Pedrito. Fernando first brought Pedrito out of the pub house and had him seated at the passenger’s seat inside the tricycle. Thereafter, he returned and got appellant who was roused when they reached the tricycle. After that, Fernando fetched Rey. While the two (Fernando and Rey) were already at the gate of Benedisco, Fernando heard a gunshot. When Fernando looked at the tricycle where his companions were, he saw appellant holding a gun. Immediately, he rushed to the tricycle where Pedrito was. Then, Fernando heard a second gunshot. According to Fernando, “he knew that appellant shot Pedrito.” Consequently, Fernando attacked appellant and held him. The two (Fernando and appellant) grappled for possession of the gun. While they were thus grappling, some policemen arrived (pp. 13-17, TSN, September 18, 1995).

Police Superintendent Sarte called up the police station and ordered his men to pick up appellant for investigation (p. 10, ibid.).

Subsequently, Police Superintendent Sarte inspected the tricycle. He saw Pedrito inside who appeared dead because of the bullet wound at his head (ibid.).

After that, Felix and Fernando brought Pedrito to Seares Clinic. Pedrito was already dead upon arrival at said clinic (pp. 17-18, TSN, September 18, 1995).

Dr. Milagros Burgos, municipal health officer of Bangued, Abra, testified that she conducted an autopsy on Pedrito’s cadaver on February 7, 1995 at 9:45 in the morning at the Baquiran Funeral Homes. Dr Burgos found out that rigor mortis had already set in when she conducted the autopsy. She found two (2) gunshots wounds. The point of entry of the first wound was in the parietal area which is located at lower left side of the back of the head. The other gunshot wound was beside the other wound. Dr. Burgos opined that the assailant could have been at the back or behind the victim when the enemy shot the victim because the entry points of the wounds were at the back (pp. 3-9, TSN, September 18, 1995).

SPO4 Napoleon Pascual, officer-in-charge of the Firearm and Explosives Unit (FEU) of Abra, PNP Command, testified that appellant is not a holder of any license or authorized to possess any kind of firearm. He also testified that the gun used in killing Pedrito is not a licensed firearm (p. 11, Decision). A certification (Exhibit K) was issued stating that appellant is not a duly licensed firearm holder.^[4]

Accused-appellant denied culpability and offered his own recollection of the incident. Accused-appellant narrated that when he was only 2 years old, his father was killed by victim Pedrito Beralas. This he learned from his mother and other relatives. Accused-appellant admitted that, on February 6, 1995, he joined the victim and his group in their drinking spree. It was at that time that the alleged killing of the father of accused-appellant by victim Pedrito was brought up. Accused-appellant maintained that Pedrito confessed to killing his father. But accused-appellant insisted that they should stop discussing about the death of his father.

Thereafter, when they were about to go home, accused-appellant and Pedrito had an altercation. Accused-appellant claimed that Pedrito threatened him and attempted to fire his gun at him but failed. So, accused-appellant struggled with Pedrito for the possession of the gun and consequently, the gun went off. Accused-appellant felt that Pedrito was losing his grip on the gun and so he seized it from him. Because accused-appellant feared for his life, it was at that moment that he shot the victim.

In its decision dated November 4, 1997, the trial court rendered a judgment of conviction in the three cases, finding and disposing that–

IN CRIMINAL CASE NO. 1645 FOR MURDER, the Court finds the accused Arnel Bernal guilty beyond reasonable doubt of the crime of murder defined and penalized under Article 248 of the Revised Penal Code as amended by Sec. 6 of Republic Act No. 7659 with the aggravating circumstances of evident premeditation and habitual drunkenness and sentences him to suffer the penalty of DEATH and to indemnify the family of the late Pedrito Beralas the amount of P52,500.00 in actual expenses incurred in connection with the burial of the latter plus P50,000.00 for his death and P500,000.00 in moral and exemplary damages;

IN CRIMINAL CASE NO. 1646 FOR VIOLATION OF RESOLUTION NO. 2735 OF THE COMELEC otherwise known as the “gun ban” during an election period and the Omnibus Election Code, the Court finds the accused Arnel Bernal guilty beyond reasonable doubt of violation of the said COMELEC resolution and as provided by par. (q) Secs. 261 and 262 of Article XX11 of the Omnibus Election Code and sentences him to suffer an imprisonment for a period of TWO (2) YEARS and FOUR (4) MONTHS and to suffer disqualification to hold public office and deprivation of the right of suffrage; and

IN CRIMINAL CASE NO. 1647 FOR SIMPLE VIOLATION OF PRESIDENTIAL DECREE NO. 1866 or ILLEGAL POSSESSION OF FIREARM AND AMMUNITION, the Court likewise finds the accused Arnel Bernal guilty beyond reasonable doubt of the crime of simple illegal possession of firearm defined and penalized under Section 1 of Presidential Decree No. 1866 and sentences him to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS of reclusion temporal as maximum.

In all these cases, the accused is likewise ordered to pay the costs.

SO ORDERED.^[5]

Hence, the instant review, with accused-appellant anchoring his plea for reversal on the following assigned errors: (1) the trial court erred in imposing upon the accused the death penalty; (2) the trial court erred in appreciating evident premeditation and treachery; and (3) the trial court erred in treating Criminal Case No. 1647 as a separate offense.

It appears from the record that not one of the prosecution witnesses saw the actual killing of the victim by accused-appellant. However, the separate and detailed accounts of the event by prosecution witnesses Fernando and Felix Bernal reveal only one conclusion: that it was accused-appellant who shot the victim.

Circumstantial as it is, conviction based thereon can be upheld, provided the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to accused-appellant, to the exclusion of all others, as the guilty person.^[6] Direct evidence of the commission of the crime is not the only matrix from which the trial court may draw its conclusions and findings of guilt. Circumstantial evidence is of a nature identical to direct evidence. It is equally direct evidence of minor facts of such a nature that the mind is led, intuitively or by a conscious process of reasoning, to a conclusion from which some other fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case, what is required is that there be proof beyond reasonable doubt that a crime was committed and that accused-appellant committed it.^[7]

As noted by the Solicitor General, the evidence is replete with details to prove the fact of death of the victim and to sustain the guilt of accused-appellant, to wit:

(1) accused-appellant, victim Pedrito, prosecution witnesses Fernando and Felix Bernal, and one Rey Bernal together went to Benedisco pub located at Bangued, Abra;

(2) since accused-appellant, Pedrito, and Rey were already sleeping inside the pub, Fernando decided to go home, brought out Pedrito first and seated him inside the tricycle;

(3) then Fernando took out accused-appellant who was roused from sleep and led him to the tricycle;

4) thereafter, Fernando went inside again to fetch Rey;

(5) on their way out, Fernando heard a gunshot and he saw accused-appellant holding a gun;

(6) Fernando rushed to the tricycle where Pedrito was and it was then that he heard another gunshot;

(7) consequently, Fernando grappled with accused-appellant for the possession of the gun;

(8) Felix Bernal testified that while Fernando fetched Rey inside the pub, he turned on the engine of the tricycle;

(9) while doing so, he heard two gunshots;

(10) when he looked at Pedrito, who was supposedly sleeping inside the tricycle, he saw blood oozing from his head; and

(11) he saw accused-appellant holding a gun.

Concededly, Fernando and Felix did not see the actual shooting and killing of the victim. Nonetheless, the above-mentioned circumstances taken together form, in our view, one unbroken chain leading to the fair and reasonable conclusion that indeed, accused-appellant, to the exclusion of all others, was responsible for the death of the victim.

Worse, the death of the victim was accomplished with treachery.

The characteristic and unmistakable manifestation of alevosia is the deliberate, sudden and unexpected attack of the victim from behind, without any warning and without giving him an opportunity to defend himself or repel the initial assault. If the attack is sudden, unexpected, not preceded by any provocation and the deceased is not in a situation to defend himself, treachery must be considered as a qualifying circumstance of murder.
The circumstances obtaining in the instant case show that treachery attended the killing of the victim by accused-appellant. The attack on the victim was sudden and unexpected, and this was evident in the manner accused-appellant shot his victim — from behind and while asleep, giving his victim no opportunity to defend himself or repel accused-appellant’s attack.

It has been held by this Court in a long line of cases that the qualifying circumstance of treachery exists when one takes the life of a person who is asleep because in such a case, the victim was not in a position to put up any defense.^[8]

Moreover, both prosecution witnesses Fernando and Felix Bernal are one in claiming that the victim was asleep inside the tricycle when they heard the gunshots. They did not witness any altercation immediately preceding the actual shooting nor was there any while both the victim and accused-appellant were inside the Benedisco pub. The fact is, after accused-appellant was brought out of the pub by Fernando, the former positioned himself at the back of the unknowing victim and discharged his firearm twice hitting his victim on the head. Unmistakably, it indicates the conscious and deliberate actions by accused-appellant to facilitate the killing without risk to himself. The sudden, unexpected and unprovoked attack during which the victim was not in a position to defend himself constitutes alevosia.^[9]

Accused-appellant argues that the trial court committed an error when it imposed the death penalty on him on account of the alternative aggravating circumstance of habitual drunkenness. He claims that the prosecution was not able to prove the same at the trial, much less that he intentionally got drunk to commit the crime. We agree.

The general rule is that intoxication may be considered either as aggravating or mitigating, depending upon the circumstances attending the commission of the crime. Intoxication is mitigating and therefore has the effect of decreasing the penalty if the intoxication is not habitual or attendant to the plan to commit the contemplated crime. On the other hand, when intoxication is habitual or done intentionally to embolden the malefactor and facilitate the plan to commit the crime,^[10] it is considered as an aggravating circumstance.^[11]

In the instant case, accused-appellant’s intoxication cannot be considered aggravating because there was no showing that it was habitual or intentional. As testified to by prosecution witness Felix Bernal, their group drink liquor only occasionally, that is, if they had visitors. His testimony that if they had visitors everyday, they drank everyday does not suffice to prove that accused-appellant was a habitual drunkard. Nor should such statement be taken against the accused-appellant. Undeniably, accused-appellant was a mere visitor at that time. He came to Bangued to attend a hearing and from there went to Barangay Dangdangla, Bangued to visit his relatives.

Further, the prosecution failed to prove that accused-appellant got drunk on the day the murder occurred for the purpose of committing the same. Neither did accused-appellant initiate the drinking spree. He merely acceded to the invitation of the victim to join his group in their drinking spree. Thus, in the absence of clear and convincing proof that the intoxication was habitual or intentional on the part of accused-appellant, it is improper to consider the same as an aggravating circumstance.^[12]

But his intoxication cannot likewise be considered mitigating because accused-appellant failed to show that his intoxication impaired his will power or his capacity to understand the wrongful nature of his acts. The person pleading intoxication must prove that he took such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason.^[13] This accused-appellant failed to do. No proof was presented by accused-appellant that the amount of liquor he had taken was of such quantity as to affect his mental faculties. The mere claim of intoxication does not entitle him to the mitigating circumstance of intoxication.

Accused-appellant likewise reasons that the trial court erred in holding that the killing of the victim was premeditated. He denies that he had any prior plan or preparation to kill Pedrito Beralas. He points out that the prosecution failed to establish the time when he supposedly decided to commit the crime or prove the acts manifesting that he clung to his determination and that there was a sufficient lapse of time between determination and execution.

We agree and the Office of the Solicitor General concurs.

Evident premeditation cannot be deduced from mere presumption or speculation. It must be proven clearly. Evident premeditation cannot be appreciated without proof of how and when the plan to kill was hatched or how much time elapsed before it was carried out. The premeditation must be evident and not merely suspected.^[14]

We find no evidence directly showing any pre-conceived plan or devise employed by accused-appellant to kill the victim. Accused-appellant did not go to Barangay Dangdangla, Bangued to kill the victim but to attend to some important matters. As earlier stated, accused-appellant was just invited by his relatives, whom he had not seen for a while after he changed residence, to have a drinking spree. The probability is that the decision to shoot the victim was made only right there and then. This should at least cast reasonable doubt on the existence of a premeditated plan to kill the victim.^[15]

The trial court thus erred in holding that evident premeditation attended the killing of the victim merely on the basis of its finding of a deep-seated and long standing grudge felt by accused-appellant towards the victim. The mere existence of ill-feeling or grudge between the parties is not sufficient to establish premeditated killing. Even assuming that accused-appellant felt spite towards Pedrito and harbored a desire to vindicate the death of his father, such a sentiment does not necessarily translate into a resolution to commit a crime. There must be an outward act showing or manifesting criminal intent.^[16] Such is absent in the instant case. Hence, it would be erroneous to declare that the killing of the victim was premeditated.

Anent accused-appellant’s conviction in Criminal Case No. 1647 for violation of Presidential Decree No. 1866 (illegal possession of firearms and ammunition), the Office of the Solicitor General (OSG) recommends that it should not be treated as a separate offense. According to the OSG, the amendments introduced by Republic Act No. 8294 to Presidential Decree No. 1866 to the effect that the use of an unlicensed firearm in killing the victim should be treated as an aggravating circumstance finds application in the instant case. Hence, if the offense was committed before the effectivity of the amendments, it should be given retroactive effect as it favors accused-appellant.

We do not, however, see how such retroactive application of the amendments favors accused-appellant. The amendatory law (RA 8294), which took effect on July 6, 1997, explicitly provides that “if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.”

Accused-appellant is convicted of the crime of murder which is punishable by reclusion perpetua to death. Without any aggravating circumstance, accused-appellant shall be meted the penalty of reclusion perpetua pursuant to Article 63 of the Revised Penal Code. However, the presence of even one aggravating circumstance will send accused-appellant to lethal injection. If we were to treat the use of an unlicensed firearm by accused-appellant in killing the victim as an aggravating circumstance therefore, the maximum penalty of death would have to be imposed. This obviously does not strengthen accused-appellant’s position and does not at all place him in a more favorable situation. It in fact damns him all the more. In contrast, accused-appellant’s separate conviction for the offense of illegal possession of firearms and ammunition will spare him his life.

But if we do not consider the use of an unlicensed firearm as an aggravating circumstance in the accused-appellant’s prosecution for murder, should we not instead convict him for the separate offense of illegal possession of firearms and ammunition under PD 1866 — on the theory that this will spare him his life and is thus favorable to him? We do not think so either.

In Criminal Case No. 1647 for illegal possession of firearms and ammunition (violation of PD 1866), we should apply the ruling enunciated in the recent case of People vs. Walpan M. Ladjaalam^[17] where we declared:

xxx if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms.

xxx     xxx     xxx

The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested.” If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.

In the above-cited case of Ladjaalam, the appellant was convicted by the trial court of (1) illegal possession of firearms, (2) direct assault with multiple attempted homicide and (3) violation of the dangerous drugs law. We acquitted him of the first crime (illegal possession) but affirmed his conviction of the latter two. In justifying the acquittal, we said inter alia that “when the crime was committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 xxx” and no “conviction for illegal possession of firearms separate from any other crime” was thus possible.

In the present case, the illegal possession of firearms (as a separate offense) was committed by accused-appellant before RA 8294 took effect. Since the amendment contained in RA 8294 is favorable to him in the sense that it would mean his acquittal (from the charge of illegal possession of firearms), then the law should be given retroactive effect.

We cannot therefore affirm the conviction of accused-appellant for illegal possession of firearm in Criminal Case No. 1647.

With respect to the awards of actual, and moral damages, the same cannot likewise be upheld by this Court. Actual damages cannot be awarded based on the allegation of a witness without any competent document to support such claim — proof is required to be adequately supported by receipts,^[18] and not merely a list as done by the prosecution. However, as the widow of the victim clearly incurred funeral expenses, P10,000.00 by way of nominal damages should be awarded. This award is adjudicated so that a right which has been violated may be recognized or vindicated, but not for the purpose of indemnification.^[19]

Furthermore, the award of P500,000.00 denominated as “moral and exemplary damages” by the court below is without basis. The widow of the victim is not entitled to moral damages because she did not testify on any mental anguish or emotional distress which she suffered as a result of her husband’s death. But recent jurisprudence^[20] justifies the imposition of exemplary damages in cases where treachery is proven as in this case. For this reason, we award the amount of P25,000.00 as exemplary damages.

Finally, when death occurs as a result of a crime, the heirs of the deceased are entitled to the amount of P50,000.00 as civil indemnity for the death of the victim without need for any evidence or proof of damages.^[21]

WHEREFORE, finding the convictions of accused-appellant justified by the evidence on record, the Court hereby AFFIRMS said judgments, with the following modifications: (a) in Criminal Case No. 1645 for murder, the penalty imposed is reduced to reclusion perpetua; (b) aside from the payment of P10,000.00 as nominal damages, accused-appellant is further ordered to indemnify the heir of the victim P50,000.00 as civil indemnity, and P25,000.00 as exemplary damages; (c) the awards of actual and moral damages are deleted; and (d) Criminal Case No. 1647 for illegal possession of firearm is hereby DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Carpio, and Austria-Martinez, JJ., concur.

Sandoval-Gutierrez, J., on leave.

---

^[1] Rollo, p. 9.

^[2] Rollo, p.11.

^[3] Rollo, p.10.

^[4] Rollo, pp. 208-212.

^[5] Rollo, pp. 43-44.

^[6] People vs. Espina, 326 SCRA 753 ^[2000] .

^[7] People vs. Oscar Oliva, et al., G.R. No. 106826, January 18, 2001.

^[8] People vs. Cotas, 332 SCRA 627 ^[2000] .

^[9] People vs. Alib, 322 SCRA 93 ^[2000] .

^[10] People vs. Ga, 186 SCRA 790 ^[1990] .

^[11] People vs. Buenaflor, 211 SCRA 492 ^[1992] .

^[12] People vs. Bañez, 301 SCRA 248 ^[1999] .

^[13] People vs. Buenaflor, 211 SCRA 492 ^[1992] .

^[14] People vs. Tortosa, 336 SCRA 604 ^[2000] .

^[15] People vs. Bacalto, 277 SCRA 252 ^[1997] .

^[16] People vs. Dimailig, 332 SCRA 340 ^[2000] .

^[17] G.R. No. 136149-51, September 19, 2000.

^[18] People vs. Enguito, 326 SCRA 508 ^[2000] .

^[19] People vs. Carillo, 333 SCRA 338 ^[2000] .

^[20] People vs. Catubig, G.R. No. 137842, August 23, 2001; People vs. Espanola, 271 SCRA 689 ^[1997] .

^[21] People vs. Daraman, 294 SCRA 27 ^[1998] .