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631 Phil. 500


[ G.R. No. 167766, April 07, 2010 ]




Assailed before Us is the Decision[1] of the Court of Appeals (CA), dated February 18, 2005, in CA-G.R. CR. No. 27458, which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 6, in Criminal Case No. VI-984, finding petitioner Engr. Carlito Pentecostes, Jr. guilty of the crime of less serious physical injuries instead of attempted murder, and the Resolution[3] dated April 19, 2005, denying the motion for reconsideration.

The antecedents are as follows:

On September 2, 1998, Rudy Baclig was drinking with his brother-in-law. After consuming ½ bottle of gin, he left and went to the house of a certain Siababa to buy coffee and sugar. He was accompanied by his four- year-old son. On their way there, a gray automobile coming from the opposite direction passed by them. After a while, he noticed that the vehicle was moving backward towards them. When the car was about two arms' length from where they were, it stopped and he heard the driver of the vehicle call him by his nickname Parrod. Rudy came closer, but after taking one step, the driver, which he identified as the petitioner, opened the door and while still in the car drew a gun and shot him once, hitting him just below the left armpit. Rudy immediately ran at the back of the car, while petitioner sped away. After petitioner left, Rudy and his son headed to the seashore. Rudy later went back to the place where he was shot and shouted for help.[4]

The people who assisted him initially brought him to the Municipal Hall of Gonzaga, Cagayan, where he was interrogated by a policeman who asked him to identify his assailant. He informed the policeman that petitioner was the one who shot him. After he was interrogated, he was later brought to the Don Alfonso Ponce Memorial Hospital at Gonzaga, Cagayan. The following day, he was discharged from the hospital.[5]

On June 1, 1999, an Information[6] was filed by the Provincial Prosecutor of Aparri, Cagayan, charging the petitioner of frustrated murder, the pertinent portion of which reads:

That on or about September 2, 1998, in the [M]unicipality of Gonzaga, [P]rovince of Cagayan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with intent to kill, with evident premeditation and with treachery, did then and there willfully, unlawfully and feloniously assault, attack and shoot one Rudy Baclig, inflicting upon the latter gunshot injuries.

That the accused had performed all the acts of execution which would have produce[d] the crime of Murder as a consequence, but which, nevertheless, did not produce it by reason of causes independent of his own will.

That the same was aggravated by the use of an unlicensed firearm.


Duly arraigned, petitioner pleaded Not Guilty to the crime as charged.[7]

During the trial, it was established that at the time the incident occurred, petitioner was employed by the National Irrigation Administration (NIA) as Irrigation Superintendent assigned at the Baua River Irrigation System (BRIS). Petitioner vehemently denied any involvement in the incident, alleging that he was in Quezon City at the time the crime was being committed. He contended that he was following-up the funding for one of the projects of NIA in Gonzaga, Cagayan. He insisted that he reported at the NIA Central Office on September 1, 1998 and stayed in Manila until the afternoon of September 4, 1998. To buttress his allegations, the petitioner presented a Certificate of Appearance[8] issued by Engr. Orlando C. Hondrade, then NIA Deputy Administrator, who testified thru a deposition that he indeed signed the document. Engr. Hondrade testified that he specifically remembered that petitioner personally appeared before him on the 1st and 4th days of September for a duration of 10 to 15 minutes. Petitioner also submitted his daily time record to prove that he was not at their office in Cagayan from the afternoon of August 31, 1998, claiming that he traveled to Quezon City pursuant to a travel authority issued by his superior.[9]

On February 27, 2003, after presentation of the parties' respective evidence, the RTC rendered a Decision[10] finding petitioner guilty of the crime of attempted murder. The decretal portion of the Decision reads:

WHEREFORE, the Court finds accused Engr. Carlito Pentecostes, Jr. guilty beyond reasonable doubt as principal of the crime of Attempted Murder and sentences him the penalty of four (4) years, two (2) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. Further, the accused is ordered to pay private complainant Rudy Baclig the amount of Two Thousand Pesos (P2,000.00).


The RTC concluded that Rudy positively identified the petitioner as the one who shot him − there was sufficient lighting for Rudy to identify the perpetrator and he knew petitioner ever since he attained the age of reason. As to petitioner's defense of alibi, the RTC ratiocinated that when petitioner personally appeared before Engr. Hondrade on September 1, 1998, it would not be impossible for him to immediately return to Gonzaga, Cagayan that afternoon and commit the crime in the evening of September 2, 1998.[12]

Petitioner then sought recourse before the CA, arguing that the RTC committed serious errors in finding that he was guilty of attempted murder and that the RTC failed to consider the testimonies of his witnesses and the documentary evidence presented in his favor.[13]

On February 18, 2005, the CA rendered a Decision affirming with modification the decision of the RTC, the dispositive portion of which reads:

WHEREFORE, the Decision of the Regional Trial Court dated 27 February 2003 is AFFIRMED with MODIFICATION that accused-appellant Pentecostes is only found GUILTY OF LESS SERIOUS PHYSICAL INJURIES and is hereby sentenced to suffer imprisonment of six (6) months of arresto mayor, there being one aggravating and no mitigating circumstance to offset it.


In convicting the petitioner to a lesser offence, the CA opined that it was not established that petitioner intended to kill Rudy when he shot him. Petitioner's act of shooting Rudy once was not followed by any other assault or any act which would ensure his death. Considering that petitioner was driving a car, he could have chased Rudy if he really intended to kill the latter, or run him over since Rudy went to the rear of the car. Petitioner's desistance displayed his nonchalance to cause the death of Rudy. Moreover, Rudy only sustained a gunshot wound on the arm, which required only 10 days of medical attendance.[15]

Not satisfied, petitioner filed a Motion for Reconsideration,[16] but was denied in a Resolution dated April 9, 2005.

Hence, this petition which raises the following issues:




Petitioner questions the conclusion of the CA when it found him guilty of the crime of less serious physical injuries. He argues that Rudy failed to positively identify him as the assailant, since Rudy never admitted that he was able to identify the petitioner through his physical appearance, but only through his voice, despite the fact that it was the first time Rudy heard petitioner's voice when he allegedly shot him. Petitioner also insists that when the incident occurred, Rudy's vision was impaired as he just drank half a bottle of gin and the place was not properly lit. Rudy also failed to identify the type of gun used during the shooting. Moreover, the prosecution failed to establish that the car used by the perpetrator was owned by the petitioner.

Further, petitioner maintains that it was impossible for him to have shot the victim on the night of September 2, 1998, since he was not in the Province of Cagayan Valley from September 1, 1998 to September 4, 1998.

The petition is bereft merit.

In sum, petitioner submits before this Court two issues for resolution. First, whether or not the prosecution established beyond reasonable doubt that petitioner was the one who shot the victim; Second, whether or not petitioner's defense of alibi would prosper.

As regards the first issue, this Court finds that the prosecution established beyond reasonable doubt that petitioner was the one who shot Rudy that fateful night of September 2, 1998. Both the RTC and the CA found that petitioner indeed shot Rudy. In arriving at this conclusion, the RTC ratiocinated in this wise:

Private complainant Rudy Baclig averred that he personally knew the accused since he was of the age of reason. Rudy knew accused Engr. Carlito Pentecostes Jr. to be working with the NIA at Sta. Cruz, Gonzaga, Cagayan. Both private complainant Rudy Baclig and accused Engr. Carlito Pentecostes Jr. were residents of Gonzaga, Cagayan, although they reside in different barangays. Rudy was residing at Brgy. Batangan, while the accused was living two-and-a-half kilometers away at Brgy. Flourishing. Rudy Baclig categorically stated that when the car of the accused passed by him, it slowly stopped then moved backward and when the car was at a distance of about two arms' length, which was about three (3) meters, the accused called Rudy's nickname Parrod. Hearing his nickname, Rudy went towards the car, but he was only able to take one step, accused Engr. Carlito Pentecostes Jr. opened the door of the car and shot Rudy once and afterwards the accused hurriedly sped away. Asked how he was able to identify Engr. Carlito Pentecostes Jr. to be the person who shot him when it was night time, Rudy said that he was able to identify the accused through the lights of the car and on cross-examination he said that aside from the lights of the car, there were also lights coming from a store nearby the place of the incident. The Court believes that with these kinds of lights, Rudy Baclig was able to identify the accused, considering the distance between the assailant and the victim was only three (3) meters.

x x x x.

Rudy Baclig was not telling a lie when he declared that he was shot at about two arms' length only because the doctor who treated him, Dr. Mila M. Marantan, declared that Rudy Baclig suffered a gunshot wound, the entry was with powder burns which is an evidence that Rudy Baclig was shot at a close range.

The defense harped on the fact that the private complainant smelled liquor. The complainant at first denied having taken liquor, but he admitted he took one-half bottle of gin before he went to buy coffee and sugar. On cross-examination, the complainant admitted also that every afternoon, he drank liquor. He admitted that he could still walk naturally a distance of about one kilometer. He also said that his vision might be affected. This testimony of Rudy Baclig cannot be considered as evidence that he was not able to identify the accused. He was categorical in stating that he was able to identify the accused. The doctor who treated Rudy of his injury declared the patient smelled liquor, but she could not tell how much liquor the patient took, however, the patient could answer all her questions.

x x x x.

There are other evidences that tend to show that Rudy Baclig was able to identify the assailant. Immediately after he was shot, Rudy told a police investigator, a certain Torres and Dr. Mila Marantan that it was Engr. Carlito Pentecostes, Jr. who shot him.[18]

This conclusion was concurred into by the CA, which categorically stated in its decision that "[t]he prosecution was able to present a witness, in the person of Baclig, who categorically identified petitioner as his assailant and whose testimony was characterized by frankness."[19] Contrary to petitioner's contention, Rudy saw him and positively identified him as his shooter, viz:

When you heard the driver of the car calling you by your nickname Parrod, what was your reaction?
I went near because I thought he was telling me something.

And what made you decide to go near the driver of the vehicle?
Because he called me by my name, Sir.

When the driver of the car called you by your [nickname], were you able to recognize the driver of the car who called you?
Yes, Sir.

And who was that person who called you by your name Parrod?
It was Engr. Pentecostes, Sir.

The same person you identified a while ago?
Yes, Sir.[20]

Corollarilly, petitioner already raised these arguments in his motion for reconsideration of the decision of the court a quo, which the CA addressed point by point in the assailed resolution denying the motion. We quote with approval the following discussion of the CA:

On the first allegation, accused-appellant wrongly read the decision. The Court upheld the trial court's finding that it was indeed accused-appellant who attacked the private complainant, not because the latter heard accused-appellant's voice but that he was able to see him through the lights of the car when he opened the window and the door. x x x

x x x x

Clearly, it was not merely hearing the assailant's voice, but that he was able to see him, that private-complainant was able to identify the accused-appellant. It was admittedly a fact that private complainant had a drink but it does not mean that he was intoxicated, especially since he admitted that he drinks everyday. Thus, his body's tolerance to alcohol is probably heightened. There was also no proof that his vision had been affected by the alcohol intake, and that he would have mistaken someone else for the accused.

Again, positive declaration is given more weight than the denial of the accused-appellant. In addition, the same findings were previously reached by the trial court which had the opportunity to observe first-hand the demeanor of the witnesses, and assess their credibility.

Regarding the Solicitor General's recommendation, the Court is not bound to follow it although in some cases, we are persuaded by the same. However, in this case, it was not able to persuade Us as it only adopted the same arguments advanced by accused- appellant's counsel.

Some of these arguments include the failure to present any document or evidence showing that the car used was owned by the accused-appellant. The ownership of the car, however, is immaterial in the light of the positive identification of the accused. In addition, the statement of the prosecution's witnesses that the car was often used by accused-appellant's father does not remove the possibility that he may also use it.

On the third allegation of error, again, accused-appellant has misread the decision and exaggerated by accusing us of relying heavily on the existence of a probable motive on the part of accused-appellant to commit the act complained of. This is clear in the decision that the same was meant to assess whether there was a probable motive for the private complainant to lie.[21]

It is clear that the arguments advanced by the petitioner in the case at bar, questioning the conclusion of the RTC and the CA that petitioner shot the victim, are trivial. The fact remains that Rudy has been shot with a gun and he positively identified his shooter as the petitioner. Petitioner faulted the RTC and the CA for giving credence to the testimony of Rudy. However, it is to be noted that even the lone declaration of a sole eyewitness is sufficient to convict if that testimony is found to be credible. Credibility of witnesses is to be weighed and should not be based on numbers. The matter of assigning values to declaration on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and to assess their credibility by various indicia available but not reflected on the record.[22]

This Court has meticulously scrutinized the transcripts of stenographic notes of this case and finds that the RTC, as well as the CA, committed no error in giving credence to the evidence of the prosecution. The Court has long adhered to the rule that findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless it overlooked substantial facts and circumstances, which if considered, would materially affect the result of the case. This deference to the trial court's appreciation of the facts and of the credibility of witnesses is consistent with the principle that when the testimony of a witness meets the test of credibility, that alone is sufficient to convict the accused.[23] This is especially true when the factual findings of the trial court are affirmed by the appellate court.[24]

As regards petitioner's defense of alibi, well settled is the rule that alibi is an inherently weak defense which cannot prevail over the positive identification of the accused by the victim.[25] Moreover, in order for the defense of alibi to prosper, it is not enough to prove that the petitioner was somewhere else when the offense was committed, but it must likewise be demonstrated that he was so far away that it was not possible for him to have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[26] In the case at bar, it was established that petitioner personally appeared before Engr. Hondrade only on September 1 and 4, 1998. His whereabouts for the two days in between the said dates are unaccounted for. There was no showing that he could not have gone back to Cagayan, committed the crime, and went back to Quezon City during those two days. Petitioner's defense of denial and alibi cannot prevail as against the positive, straightforward and consistent testimony of Rudy that it was petitioner who shot him on the night of September 2, 1998.

As to the crime committed by petitioner, this Court also concurs with the conclusion of the CA that petitioner is guilty of the crime of less serious physical injuries, not attempted murder.

The principal and essential element of attempted or frustrated murder is the intent on the part of the assailant to take the life of the person attacked. Such intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal intent of the aggressor.[27] In the present case, intent to kill the victim could not be inferred from the surrounding circumstances. Petitioner only shot the victim once and did not hit any vital part of the latter's body. If he intended to kill him, petitioner could have shot the victim multiple times or even ran him over with the car. Favorably to petitioner, the inference that intent to kill existed should not be drawn in the absence of circumstances sufficient to prove this fact beyond reasonable doubt.[28] When such intent is lacking but wounds are inflicted upon the victim, the crime is not attempted murder but physical injuries only. Since the Medico-Legal Certificate[29] issued by the doctor who attended Rudy stated that the wound would only require ten (10) days of medical attendance, and he was, in fact, discharged the following day, the crime committed is less serious physical injuries only. The less serious physical injury suffered by Rudy is defined under Article 265 of the Revised Penal Code, which provides that "(A)ny person who inflicts upon another physical injuries not described as serious physical injuries but which shall incapacitate the offended party for labor for ten (10) days or more, or shall require medical attendance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor."

As to the aggravating circumstance of treachery, this Court finds that the CA erroneously concluded that treachery attended the commission of the crime. To establish treachery, the following must be proven: (1) the employment of such means of execution as would give the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of the means of execution.[30] The circumstances attending the commission of the crime negate the existence of treachery in its execution. Although petitioner deliberately assaulted Rudy and there was suddenness in his attack, he did not logically plan to assault the latter when he chanced upon him while he was driving. In treachery, the perpetrator intentionally and purposely employs ways and means to commit the crime. There was no evidence, however, to show that petitioner employed such means of execution that would ensure the commission of the crime without harm to his person. Thus, treachery did not attend the commission of the crime.

There being no aggravating and no mitigating circumstance, the penalty for the crime of less serious physical injuries should be taken from the medium period of arresto mayor, which is from two (2) months and one (1) day to four (4) months. The Indeterminate Sentence Law finds no application in the case at bar, since it does not apply to those whose maximum term of imprisonment is less than one year.[31]

As regards the awards for damages, moral damages may be recovered in criminal offenses resulting in physical injuries, but there must be a factual basis for the award.[32] We have studied the records and find no factual basis for the award of moral damages.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals, dated February 18, 2005, and the Resolution dated April 19, 2005 in CA-G.R. CR No. 27458, are AFFIRMED with MODIFICATION. Petitioner Engr. Carlito Pentecostes, Jr. is sentenced to suffer the straight penalty of three (3) months of arresto mayor.


Corona, (Chairperson), Velasco, Jr., Nachura, and Mendoza, JJ., concur.

[1] Penned by Associate Justice Andres B. Reyes, Jr., with Associate Justices Lucas P. Bersamin (now a member of this Court) and Celia C. Librea-Leagogo, rollo, pp. 38-63.

[2] Penned by Judge Rolando R. Velasco; id. at 71-83.

[3] Rollo, pp. 65-70.

[4] Id. at 71-72.

[5] Id. at 72.

[6] Records, p. 1.

[7] Id. at 72.

[8] Id. at 166.

[9] Rollo, pp. 74-77.

[10] Id. at 71-83.

[11] Id. at 82.

[12] Id. at 71-77.

[13] Id. at 46.

[14] Id. at 62-63.

[15] Id. at 56-59.

[16] CA rollo, pp. 127-144.

[17] Rollo, p. 18.

[18] Id. at 78-79.

[19] Id. at 54-55.

[20] TSN, April 13, 2000, pp. 7-8.

[21] Rollo, pp. 67-69.

[22] People v. Coscos, 424 Phil. 886, 900-901 (2002).

[23] People v. Ramos, G.R. No. 172470, April 8, 2008, 550 SCRA 656, 678.

[24] People v. Gallego, 453 Phil. 825, 849 (2003).

[25] People v. Malones, 469 Phil. 301, 328 (2004).

[26] Id. at 329.

[27] People v. Pagador, 409 Phil. 338, 351 (2001).

[28] Id.

[29] Records, p. 6.

[30] People v. Catbagan, G.R. Nos 149430-32, February 23, 2004, 423 SCRA 535, 564.

[31] People v. Glino, G.R. No. 173793, December 4, 2007, 539 SCRA 432, 461.

[32] Civil Code, Art. 2219 (1); See Civil Code, Art. 2217; See People v. Molina, 391 Phil. 282, 301 (2000).

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