475 PHIL 215
CALLEJO, SR., J.:
That on or about the 1st day of March 1995 at about 3:00 o’clock in the afternoon in Barangay Nagsabaran Sur, Municipality of Balaoan, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot with a short firearm Orlando Tabafunda y Orfiano thereby inflicting multiple gunshot wounds on said victim which cause[d] his death, to the damage and prejudice of the heirs of the same victim.The appellant, with the assistance of counsel, pleaded not guilty to the crime charged.
CONTRARY TO LAW.
The other 2, with a wound entrance measuring about 1.5 cms. with a depth of 1.5 cms. directed to the front and slightly downwards, injuring the left lower lobe, lung.
- Gunshot wound, multiple (#9), upper back, L MCL in cluster approximately about 1-1.5 cms. apart, with a wound entrance measuring approximately 0.7 cm., with an average depth of about 2 cms.
Note: 3 slugs were recovered inside L thoracic cavity.
- Hemothorax, L, massive.
Conclusion: The cause of death is hemorrhage sec. to multiple GSW.
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused RODOLFO TUVERA y NERI guilty beyond reasonable doubt of the crime of MURDER as defined and penalized in Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, Sec. 6, and thereby sentences said accused to suffer the penalty of RECLUSION PERPETUA TO DEATH, and indemnify the heirs of the victim in the amount of P50,000.00.
THE LOWER COURT ERRED IN FINDING THAT THERE WAS TREACHERY IN THE COMMISSION OF THE CRIME.The appellant contends that the prosecution failed to prove that he shot the victim and that even if he did so, the prosecution failed to prove the qualifying circumstance of treachery. He asserts that, as gleaned from the testimony of Pajarit and Gumangan, they did not actually see the appellant shoot the victim. He avers that the victim started the fight by poking his gun at him after he refused the victim’s invitation to drink because the latter was insulted by his rejection. The bare fact that the gunshot wound was at the back of the victim is not conclusive proof of treachery. He avers that the victim was shot at the back because immediately after he (the appellant) wrested possession of the gun, the victim suddenly turned his back towards him and the gun suddenly fired.
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF MURDER.
First, prosecution witness Arturo Gumangan was firm in his assertion that appellant shot the victim at the back while the latter was urinating (TSN, September 17, 1997, pp. 8-9).
Second, the aforementioned attack from behind the victim is supported by the Post Mortem Examination Report issued by Dr. Felicidad Ledda who found that the victim’s cause of death was due to a gunshot wound at the back (Exh. “F”).
Third, the attack on the victim was without the slightest provocation on his part.
Fourth, to insure the execution of the act complained of, appellant launched the attack from behind and even appellant’s companions were caught off-guard [People v. Carpio, 282 SCRA 23 (1997)]. What is decisive in the mode of attack from behind made it impossible for the victim to defend himself or to retaliate [People v. Jose, 324 SCRA 197 (2000)].
For his part, Pajarit testified that he heard a gunshot and when he looked in the direction where the gunfire emanated from, he saw the appellant lowering his hand, which held a gun:
Q And while you were drinking as you said, do you recall if there was an unusual thing that happened? A There was, Sir. Q What was that? A The thing that happened to Orlando Tabafunda. Q What do you mean that happened to Orlando Tabafunda? A He was shot, Sir. Q Where exactly, at what place was Orlando shot? A On the north side, Sir. Q How far was he in the table around you, where Orlando Tabafunda was shot? A From here up to the western wall of the courtroom, a distance of about seven (7) meters, more or less. Q Where did Orlando Tabafunda go when you said that he was shot seven (7) meters from the table? A He went to urinate, Sir. Q In relation of (sic) the table, where was Orlando Tabafunda shot? A Northwest, Sir. Q And you said that Orlando Tabafunda went to urinate, what did he do to you when he went to urinate, what actually did he do? A I saw him actually urinated. Q In relation to the table, where did you position yourself? A On the eastern part of the table, Sir. Q When you said east somewhere north, to what direction were you facing? A I was facing northwest, Sir. Q And you said that Orlando Tabafunda was urinating, to what direction was he facing at the time? A Northwest, Sir. Q How about the accused Rodolfo Tuvera, in relation to the place where Orlando Tabafunda was urinating, where was he? A He was then sitting here. (Witness pointing to the south of the table) Q What did Rodolfo Tuvera do, if any, when Orlando Tabafunda went to urinate? A There was, Sir. Q Could you tell the Court what he did? A He shot Orlando Tabafunda, Sir. Q Alright, where was Rodolfo Tuvera in relation to Orlando who was then urinating when you said Rodolfo Tuvera shot Orlando? A Behind Orlando Tabafunda, Sir. Q And when Rodolfo Tuvera went behind Orlando, did you see him? A Yes, Sir. Q And could you demonstrate to the Court how Rodolfo Tuvera positioned himself at the back of Orlando Tabafunda when he shot him? A Yes, Sir. COURT INTERPRETER: Like this, witness standing right to the west raises his right hand extend forward in front parallel to the ground. FISCAL TECAN: Q How many times did Rodolfo Tuvera shoot Orlando Tabafunda? A Once only, Sir. Q Did you notice the weapon that was used in shooting Orlando Tabafunda? A Yes, Sir. Q Could you describe it to the Court? A I don’t know the kind but as long as this, Sir. [Witness indicating a foot (sic).] Q Did you notice the barrel, long or what? A It was long, the barrel was big. Q What part of the body of Orlando Tabafunda was hit? A His back, Sir. Q What particular part of the back was hit? A On the left side, Sir. (Witness touching the left side at the back) Q At the time Rodolfo Tuvera raised his gun and fired to this Orlando Tabafunda, what was Orlando Tabafunda actually doing at that time? A He was urinating, Sir. Q Sitting down or what? A Standing, Sir. Q To what direction was he facing at the time Orlando Tabafunda was urinating? A Northwest, Sir. Q What did Rodolfo Tuvera say, if any, before he shot Orlando Tabafunda? A None, Sir. Q How about this Orlando Tabafunda, what did he say, if any, before he was shot? A None, Sir. Q When Orlando Tabafunda was shot, what happened next? A He ran, Sir. Q To what direction was Orlando Tabafunda running? A [He] proceeded westward then to the south. Q How about you, what did you do when you saw Rodolfo Tuvera shot Orlando Tabafunda and Orlando Tabafunda ran away? A We went to follow them because Rodolfo Tuvera was chasing him, Sir. Q So, you are trying to tell the Court that when Orlando Tabafunda was shot and he ran, he was followed by Rodolfo Tuvera? A Yes, Sir. Q And what did Rodolfo Tuvera do aside from running after Orlando? A No more, he just went to see Orlando Tabafunda, Sir. Q You mean, Rodolfo Tuvera was able to catch up with Orlando Tabafunda? A Yes, because Orlando Tabafunda tripped and fell on his face. Q From the place where he was chased to the place where he fell when he was chased by Rodolfo Tuvera, how far? A From the place where he was shot and to the place where Orlando Tabafunda was urinating, from here up to the national road. The distance is about 40 meters, more or less. FISCAL TECAN: May we know if the counsel for the defense will admit. ATTY. LAUDENORIO: Yes. FISCAL TECAN: Q You said that if you take the distance in (sic) straight way, how did Orlando Tabafunda run, was it straight or what? A He was running in a zigzagging manner directly west and later turned to the south, Sir. Q And were you able to reach the two? A Yes, Sir. Q What did Rodolfo Tuvera do when you were able to reach them? A He just looked at Orlando Tabafunda who was then shaking, Sir. Q Do you know why Orlando Tabafunda was shaking at that time? A I know, Sir. Q Why? A Because of his gunshot wound and he was dying at the time. Q After looking at Orlando Tabafunda lying and trembling, what did he do? A He ran away, Sir. Q To what direction did he run? A North, Sir.
The appellant admitted, when he testified, that after taking possession of the gun from the victim, the latter turned his back towards him and, at that instance, the gun he (the appellant) was holding had fired, hitting the victim who fled. The appellant also fled and threw the gun away:
Q And you said that you were there at the Day Care Center at Brgy. Nagsabaran Sur, Balaoan, La Union, what were you doing there? A We were drinking, Sir. Q Drinking what? A The local basi and the San Miguel Gin, Sir. Q Now, when did you start drinking wine at the Day Care Center? A 3:00 o’clock in the afternoon, Sir. Q Now, while you were there at the Day Care Center at around 3:00 o’clock of March 1, 1995, do you recall if there was anything unusual that happened? A Yes, Sir. There was, Sir. Q What was that unusual incident that happened, will you please tell the Court? A A shooting, Sir. Q And where exactly did the shooting happen? A At the side of the Day Care Center, Sir. Q And you said, shooting. What was the cause of the shooting or what was used in the shooting? A Well, it was a shot, Sir. Q Where were you exactly when you heard the shot? A I was in front of the Day Care Center, Sir. Q You were sitting, standing up or what? A I was sitting, Sir. Q While sitting there, to what direction were you facing? A At the east, Sir. Q And you heard the shot which emanated, as you said, at the side of the Day Care Center. In relation to you, where is (sic) that shot that you heard? A It came from the northwest, Sir. Q And what did you do when you heard the shot? A I looked to see because I was taken aback, Sir. Q And to what direction did you look? A Northwest, Sir. Q And what did you see, if any? A Rodolfo Tuvera was already lowering down with (sic) his gun, Sir.
[Witness with his right hand on the label (sic) of his waist, puts it down or lower (sic) it]
Q And you said that Rodolfo Tuvera, do you know personally this person to whom you said you saw lowering his gun? A Yes, Sir. He is my friend, Sir. Q And for how long has he been your friend? A For a long time already, Sir. Q Could you say 20 years? A No, Sir. Q 10 years? A 10 years, Sir. Q And do you know from where is this Rodolfo Tuvera? A Yes, Sir. Q Where, from where is he? A From Nagsabaran Sur, Balaoan, La Union, Sir. Q If this Rodolfo Tuvera is shown to you now, could (sic) you be able to identify him? A Yes, Sir. Q Could you please look round inside the courtroom if he is in Court now? A That one, Sir. (Witness pointing to someone and said that one in green shirt according to him) COURT: You are pointed to (sic) as Rodolfo Tuvera. INTERPRETER: Somebody was pointed by the witness and ask (sic) to point if he knows Rolando Tuvera and the Honorable Presiding Judge asked said man as pointed to by the witness to stand up and identify himself and Court Interpreter asked his name and he identified himself as Rodolfo Tuvera, Your Honor. FISCAL TECAN: Q Aside from being a friend, are you related to Rodolfo Tuvera? A No, Sir. Q When you saw Rodolfo Tuvera lowering his gun as you said, what happened next? A The one who was shot ran in a zigzag manner, Sir. Q Who is this person whom you said was shot and was running in a zigzag manner? A Orlando Tabafunda, Sir. Q You said that Orlando Tabafunda was shot, why do you say that? A
Well, his back was already bloodied, that was what I saw, Sir.
The first time that you saw Orlando Tabafunda, what was his position?
A He was urinating facing northwest, Sir. Q And how about this Rodolfo Tuvera, the first time that you saw him, where was he in relation to Orlando Tabafunda? A He was at the back of Orlando Tabafunda, Sir. Q Could you please stand up? A (Witness demonstrates to the Court, taking the Court Interpreter as Orlando Tabafunda and you are Rodolfo Tuvera) Q Could you please show to the Court the relative position at the time that you saw them for the first time? A (Witness positioned the Court Interpreter to face the northwest as he is standing taking the role of Orlando Tabafunda. Witness now positioned himself obliquely a little to the back of Orlando Tabafunda just farther away, just a little farther away than one meter to the back when I looked at them, Rodolfo Tuvera was already lowering his gun from a parallel position to a perpendicular position with his right hand pointing towards the northwest) ATTY. CABADING: May we request the Court Interpreter to correct, Your Honor, to interpret only what has been said. Now, the witness mentioned that he lowered his gun, “imbabana.” That is all, Your Honor. FISCAL TECAN:
In the demonstration, he was directly (sic) the arm towards Orlando Tabafunda and then he lowered it, Your Honor. So he is just stating the demonstration, Your Honor.
The testimonies of Pajarit and Gumangan are corroborated by the post-mortem report of Dr. Felicidad Ledda showing that the nine entrance wounds sustained by the victim were located on his back. The appellant must have used an automatic gun because the victim sustained nine wounds. The doctor recovered three slugs from the body of the victim.
FISCAL TECAN: Q What was the reason why, if you know that Orlando Tabafunda turned his back to you at the time you were in possession of the gun? A Maybe the gun (sic) was already in my possession, he must have been afraid, Sir. Q How far was Orlando Tabafunda at the time the gun fired? A Maybe just more than a meter away. Q You were holding a firearm at the time? A Yes, Sir. Q Will you tell the Court what was your position when the gun fired? FISCAL TECAN: He was still thinking. A Maybe it is only like this: I was able to grab it from him, I must have been holding this way. (Witness with his left hand holding the lower part of the left hand holding the gun and a position a little bit slanting towards the ground). Q We understand from you that you were holding the handle of the firearm at the time? FISCAL TECAN: The witness is again thinking it over. A Maybe, Sir. Q You are very sure of the pointing (sic) is slanting towards the ground at the time the gun fired? A I don’t know, Sir. Q How many times did the gun fire? A Only once, Sir. Q What happened with Orlando Tabafunda at the time the gun fired? A He said, “annay ko” and then ran away. Q But the firearm you were holding, you keep (sic) it into your waist, is it not? A No, Sir. Q What did you do with it? A I threw it near us the (sic) place, Sir. Q After that, you ran away? A Yes, Sir.
Art. 63. Rules for the application of indivisible penalties.— In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.The trial court ignored the above-cited provision and sentenced the appellant to suffer “reclusion perpetua to death” despite the presence of the generic mitigating circumstance of voluntary surrender. Even if the appellant is not entitled to any mitigating circumstance, the correct penalty should only be reclusion perpetua, absent any generic aggravating circumstance attendant to the crime. Trial judges must bear in mind that, as important as the duty to determine the guilt or innocence of the accused, is the duty to impose the correct penalty on the accused especially in those cases where the imposable penalty is reclusion perpetua, or life imprisonment, or the death penalty. Penalties of imprisonment involve the liberty of the accused. For the trial court to deprive the accused of his liberty without legal basis is a travesty.
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:
- When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.
- When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.
- When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.
- When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.