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435 Phil. 70
SECOND DIVISION
[ G.R. No. 136844, August 01, 2002 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.
SPO1 RODOLFO CONCEPCION Y PERALTA, ACCUSED-APPELLANT.
D E C I S I O N
QUISUMBING, J.:
Appellant seeks the reversal of
the decision[1] of the
Regional Trial Court of Tarlac, Branch 65, in Criminal Case No. 9776, finding
him guilty of murder and sentencing him to reclusion perpetua.
On January 22, 1998, an
information[2] for murder was filed with the trial court charging
him with murder allegedly committed as follows:
That on or about November 24, 1997 between 10:00 and 11:00 o’clock in the evening, in Brgy. Cut-Cut II, Municipality of Tarlac, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the said accused, with intent to kill and with treachery, did then and there wilfully, unlawfully and feloniously shoot with his Armalite rifle Lorenzo Galang hitting him at the different parts of his body and as a result of which said Lorenzo Galang died instantly.
CONTRARY TO LAW.
Appellant pleaded not guilty to
the charge, and thereafter trial commenced.
The prosecution relied mainly on
the eyewitnesses Maximo Sison, Jr., an employee of Hacienda Luisita, and Arturo
Yarte, a tricycle driver, both of Barangay Cut-cut II, Tarlac City. Other prosecution witnesses were Orlando
Galang, brother of the victim Lorenzo Galang, and Concordia Galang, his mother.
Both MAXIMO SISON, JR. and ARTURO
YARTE testified[3] that between 10:00 and 11:00 in the evening of
November 24, 1997, Lorenzo Galang, a resident of their barangay, got involved
in a quarrel at the town plaza. He was brought to the barangay hall for
questioning by Barangay Captain Remigio Capitli.
Shortly after, appellant Rodolfo
Concepcion arrived and fired his rifle twice or thrice past the ears of
Lorenzo, who was then sitting, but without injuring him. After that, however,
appellant thrust the barrel of the gun against the abdomen of Lorenzo. Then there was an explosion. Lorenzo was shot in the thigh. At least three more shots were fired,
hitting Lorenzo in the chest. According
to Sison and Yarte, appellant shot Lorenzo deliberately. Lorenzo died instantly.
ORLANDO GALANG, the victim’s
brother, recalled that he arrived at the scene of the crime after Lorenzo was
slain.[4] According to him, his brother was not brought to the
hospital.[5] Orlando testified on the anguish he suffered for
having lost his brother. [6]
CONCORDIA GALANG, mother of the
victim, testified that Lorenzo worked at the Hacienda Luisita and was earning
P1,000 more or less a week.[7] According
to her, Lorenzo was 27 years old when he died. He was married and had two children.[8] As a result
of Lorenzo’s death, the Galang’s incurred expenses amounting to approximately
half a million pesos.[9] Concordia Galang presented a list of these expenses
amounting to P257,259,[10] but without supporting receipts.
In his defense, appellant RODOLFO
CONCEPCION claimed that the shooting was only accidental. According to him, he was investigating
Lorenzo for the latter’s disorderly behavior at the town plaza when it
happened. He said Lorenzo appeared
drunk and unruly, and even verbally challenged him to fight. At this juncture, according to appellant, he
fired two shots in the air, but Lorenzo grabbed the barrel of his gun. The gun
accidentally fired and Lorenzo was hit.[11]
Defense witnesses ESTELITA BALUYOT
and MILAGROS VILLEGAS corroborated appellant’s story. They said they witnessed the incident because they were among the
bystanders who saw the event happen from the time Lorenzo was brought to the
barangay hall for investigation until he was shot.
Estelita and Milagros testified
that Lorenzo was seated while being questioned and pacified by appellant. Appellant was then standing. All of a sudden, according to the
lady-witnesses, appellant fired two warning shots in the air. Lorenzo stood up and grabbed the barrel of
the gun which was then pointed upwards. When it fired, Lorenzo was hit.[12]
On November 10, 1998, the trial
court rendered its decision finding appellant guilty of the crime of
murder. Its fallo reads:
WHEREFORE, finding accused guilty beyond reasonable doubt of the crime of murder punished and defined by Article 248 in relation to RA 7659, accused is hereby sentenced to suffer an imprisonment of reclusion perpetua and to indemnify the heirs of the deceased in the amount of P50,000.00 for his loss of life; P120,000.00 as expected income; P100,000.00 as moral damages; and P10,000.00 as attorney’s fees.[13]
Seasonably, appellant filed his
notice of appeal. In his brief, he
makes but one assignment of error:
THE LOWER COURT GRAVELY ERRED IN NOT FINDING THAT THE INJURIES SUSTAINED BY THE DECEASED WERE UNINTENTIONALLY INFLICTED WHILE ACCUSED-APPELLANT WAS IN THE COURSE OF PERFORMING HIS LAWFUL DUTY AS A POLICE OFFICER.[14]
The sole issue in this case is
whether appellant is exempt from criminal liability. Under Article 12 (4) of the Revised Penal Code, among those
exempted from criminal liability is:
Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.
Well settled is the rule in
criminal cases, that the prosecution has the burden of proof to
establish the guilt of the accused.[15] However, once the defendant admits the commission of
the offense charged, but raises an exempting circumstance as a defense, the
burden of proof is shifted to him. By
invoking mere accident as a defense, appellant now has the burden of proving
that he is entitled to that exempting circumstance under Article 12 (4) of the
Code.
The existence of accident must be
proved by the appellant to the satisfaction of the court. For this to be properly appreciated in
appellant’s favor, the following requisites must concur: (1) that the accused
was performing a lawful act with due care; (2) that the injury is caused by
mere accident; and (3) that there was no fault or intent on his part to cause
the injury.[16] Appellant must convincingly prove the presence of
these elements in order to benefit from the exempting circumstance of
accident. However, his defense utterly
failed to discharge this burden. Thus,
we find no reversible error in the judgment of the trial court.
By appellant’s own testimony, the
victim was unarmed. In contrast,
appellant had an armalite and a handgun. It is highly inconceivable that an
unarmed man could pose bodily harm to another who is heavily armed.
We note, that appellant’s gun
discharged several shots that hit vital parts of the victim’s body. Was the discharge purely accidental? We don’t think so. As observed by the trial court, recklessly appellant had put his
finger on the trigger of his cocked and loaded rifle. In that state, with the slightest movement of his finger,[17] the rifle would fire readily. And it did not just once but several fires.
Appellant claims that the victim
Lorenzo, who was drunk at the time, was brought to the barangay hall for
investigation. Lorenzo became unruly
while being questioned, so appellant was constrained to fire two warning shots
in the air to frighten him. However,
the latter stood up and immediately grabbed the nozzle of the gun and pulled it
towards him. The gun accidentally went
off and hit Lorenzo in the body. To
buttress his claim, appellant rationalizes that he could have killed Lorenzo
immediately while creating trouble at the plaza, if that was indeed his
intention. Since he did not, appellant
posits that there was no intent on his part to kill Lorenzo.
But we note patent inconsistencies
in his claims. He testified on query by
the trial court that when he was pacifying the victim, his rifle was hanging on
his shoulder on a swivel, with its barrel pointed to the floor. At that instance, the victim grabbed the
barrel of the gun which accidentally fired.[18] However, on direct examination by his defense
counsel, he testified that the victim grabbed his rifle only after he had fired
the two shots in the air.
His claims do not square with and
could not overcome the testimony of prosecution witnesses on this score. Note that Maximo Sison, Jr., an eyewitness,
categorically declared that he saw appellant shoot the victim with an M-16
armalite.[19] On direct examination, Sison testified as follows:
Q: Earlier, you stated at the time you arrived at the barangay hall, Rodolfo Concepcion was eight (8) meters away from Lorenzo, at that time Rodolfo Concepcion shot Lorenzo Galang, how far is Rodolfo Concepcion from Lorenzo Galang?
A: He was near him because he approached him, sir. He was very near.
x x x
Q: How many times did Rodolfo Concepcion shot (sic) Lorenzo Galang?
A: The first firing were two (2) shots, sir.
Q: Was Lorenzo Galang hit?
A: No sir.
Q: At the time Rodolfo Concepcion fired these two (2) shots, according to you, it was near his left ear?
A: Yes, sir.
Q: How far is the barrel from the ear of Lorenzo Galang when he fired those two shots? Will you indicate by pointing your left ear?
A: Less than a foot, sir.
Q: When you are referring to the barrel of the gun which was pointed at the left ear of Lorenzo, how far is the barrel of the gun from the ears of Lorenzo?
A: The barrel was “lampas tainga” so Lorenzo was not hit, sir.
Q: What happened after that?
A: He put down and thrust the barrel of the gun toward the stomach of Lorenzo Galang, sir.
Q: After Rodolfo Concepcion thrust the barrel of his gun towards the abdomen of Lorenzo Galang what else transpired?
A: Because he was hurt he tried to push the barrel of the gun, sir.
Q: What did Lorenzo Galang use in pushing the barrel when Rodolfo Concepcion thrust it towards the stomach?
A: He just pushed a little bit to remove the barrel of the gun from his abdomen, sir.
Q: After that what happened?
A: After pushing the barrel of the gun simultaneously the firing and hitting Lorenzo at his right thigh, sir.
Q: What did Lorenzo Galang do after he was hit on the right thigh?
A: Because Lorenzo was seated, he was lifted from his seat, sir.
Q: Incidentally at that time when Rodolfo Concepcion placed the barrel of his gun about a distance away from the ear of Lorenzo, how far was Lorenzo Galang positioned that time?
A: He was leaning on the chair sir.
Q: What about Rodolfo Concepcion how was he positioned when he fired those first two shots?
A: He was standing, sir.
Q: Now after the right thigh of Lorenzo Galang was hit by third shot what else transpired?
A: He again thrust the barrel of his gun on the chest or towards the chest of Lorenzo and simultaneously fired the gun.[20]
The autopsy report corroborates
Sison’s testimony that the victim had three gunshot wounds: one at the right
nipple, another at the mid-femur (thighbone), and another above the knee.[21] Likewise, Sison’s declaration on material details
coincide with those narrated by Arturo Yarte, a barangay tanod who also
witnessed the shooting incident. There
is no proof of ill motive on the part of Sison and Yarte that could have
impelled them to falsely testify against appellant. In fact, Sison was appellant’s childhood friend.[22]
The trial court found that
treachery attended the commission of the crime. As hereafter explained, however, in this case treachery is only
an aggravating and not a qualifying circumstance.
To constitute treachery (alevosia),
two conditions must be present: (1) the employment of means of execution that
give the person attacked no opportunity to defend himself or to retaliate; and
(2) the means of execution were deliberately or consciously adopted.[23] Here, treachery was clearly present considering that
the victim was totally unprepared for the barrage of gunshots made by appellant.
It was undisputed that the victim was brought to the barangay hall for
questioning. He had submitted himself
to the authority of the barangay officials and to the police authorities. He was seated, thereby excluding any
insinuation that he was violent and unruly. He was weak from drinking at the time so that he had very little
physical ability to cause harm to anyone, more so in the presence of the
barangay captain, barangay tanod and a police officer in the person of
appellant.[24]
From the circumstances of the
case, the Court agrees with the prosecution that appellant consciously and
purposely adopted the means of attack to insure the execution of the crime
without risk to himself.
However, we note that treachery,
though stated in the information, was not alleged with specificity as
qualifying the killing to murder. Following People vs. Alba, G.R. No. 130523, January 29, 2002, the
information should state not only the designation of the offense and the acts
and omissions constituting it, but should also specify the qualifying and
aggravating circumstances. Since the
information in this case failed to specify treachery as a circumstance
qualifying the killing to murder, under the present Revised Rules of Criminal
Procedure,[25] treachery has to be considered a generic aggravating
circumstance only. Consequently, the
crime committed by appellant is homicide and not murder.
Further, we find that the trial
court misappreciated as an aggravating circumstance the fact that appellant was
a policeman on duty at the time of the killing. The information charging appellant bears no mention of this
aggravating circumstance. Pursuant to
the Revised Rules of Criminal Procedure that took effect on December 1, 2000,
every complaint or information must state not only the qualifying but also the
aggravating circumstances.[26] This provision may be given retroactive effect in the
light of the well-settled rule that statutes regulating the procedure of the
courts will be construed as applicable to actions pending and undetermined at
the time of their passage.[27] The aggravating circumstance of abuse of official
position, not having been alleged in the information, could thus not be
appreciated to increase appellant’s liability.
At any rate, appellant’s immediate
surrender to police authorities after the shooting should be credited in his
favor as a mitigating circumstance, pursuant to Article 13 (7) of the Revised
Penal Code.[28]
In sum, we find appellant guilty
of homicide. The penalty for homicide
under Article 249 of the Revised Penal Code is reclusion temporal. There being one mitigating circumstance of
voluntary surrender and one aggravating circumstance of treachery, the penalty
should be imposed in its medium period. Applying the Indeterminate Sentence Law, appellant’s sentence should be
within the range of prision mayor as minimum, and the medium period of reclusion
temporal as maximum.
As to the award of damages, the
trial court offered no explanation for the award of P120,000 as expected
income. This figure is without
basis. The victim’s lost earnings are
to be computed according to the formula adopted by the Court in several decided
cases, to wit:
Net earning capacity = 2/3 x (80-age of the a reasonable portion
victim at the time of x of the annual net
his death) income which would
have been received by
the heirs for support[29]
Lorenzo was 27 years old at the
time of his death. His mother testified
that he was earning P1,000 a week during his lifetime or an annual income of
P48,000. In the absence of proof of his living expenses, his net income is
deemed to be 50 percent of his gross income.[30] Using the above formula, we fix the indemnity for
loss of earning capacity of Lorenzo at P848,000, thus:
Net earning capacity = 2 (80-27) x [P48,000 – P24,000]
3
= 2 (53) x P24,000
3
= 35.33 x P24,000
= P848,000
We find the award of P50,000 as
death indemnity to the heirs of the deceased to be in accordance with existing
jurisprudence.[31] This civil indemnity is automatically granted to the
heirs of the victim without need of any evidence other than the fact of the
commission of the crime.[32] As for moral damages, the amount should be reduced to
P50,000 also in accordance with existing jurisprudence.[33] The award of P10,000 as attorney’s fees is sufficient
and justified.
WHEREFORE, the decision of the Regional Trial Court, Tarlac,
Branch 65, in Criminal Case No. 9776, convicting appellant Rodolfo Concepcion
of the crime of murder, is hereby AFFIRMED with MODIFICATION. Appellant
is found guilty of the crime of homicide and sentenced to an indeterminate
penalty of eight (8) years and one (1) day of prision mayor as minimum
and fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal
as maximum. He is also ordered to
pay the heirs of the victim the amount of P50,000 as civil indemnity, P50,000
as moral damages, P848,000 as lost earnings, P10,000 as attorney’s fees, and
the costs.
SO ORDERED.
[1] Rollo, pp. 53-57.
[2] Id. at 4-5.
[3] TSN, April 15, 1998, pp. 2-9 and TSN, May 5, 1998,
pp. 3-21.
[4] TSN, June 2, 1998, p. 5.
[5] Ibid.
[6] Ibid.
[7] TSN, July 7, 1998, p. 4.
[8] Ibid.
[9] Id. at 5.
[10] TSN, October 14, 1998, p. 3.
[11] TSN, November 5, 1998, pp. 2-10.
[12] TSN, October 15, 1998, pp. 2-13; TSN, October 20,
1998, pp. 2-8.
[13] Rollo, p. 57.
[14] Id. at 48.
[15] Balanay
vs. Sandiganbayan, G.R. No. 112924,
344 SCRA 1, 10 (2000).
[16] People vs. Mat-an, G.R. No. 91115, 216 SCRA
843, 849 (1992).
[17] Records, p. 78.
[18] TSN, November 5, 1998, p. 10.
[19] TSN, April 15, 1998, p. 6.
[20] TSN, April 15, 1998, pp. 6-7.
[21] Records, p. 23.
[22] TSN, April 15, 1998, p. 2.
[23] People vs. Mabuhay, G.R. No. 87018, 185 SCRA
675, 680 (1990) cited in Reyes, The Revised Penal Code, Book I, 13th Ed., p. 429.
[24] Records, p. 78.
[25] Sec. 8, Rule 110. Designation of the
offense. - The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the statute punishing
it.
Sec. 9, Rule 110. Cause of the accusation. - The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must
be stated in ordinary and concise language and not necessarily in the language
used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment.
[26] Ibid.
[27] People vs.
Arrojado, G.R. No. 130492, 350
SCRA 679, 696 (2001).
[28] ART. 13. Mitigating circumstances. –
The following are mitigating circumstances:
x x x
7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.
x x x
[29] People vs.
Barnuevo, G.R. No. 134928,
September 28, 2001, p. 10, citing People vs. Espanola, G.R. No. 119308,
271 SCRA 689, 717 (1997) and People
vs. Aspiras, G.R. No. 121203,
330 SCRA 479, 495 (2000).
[30] People vs. Barnuevo, supra, note 29 at 10.
[31] Metro Manila Transit Corporation vs. Court of
Appeals, G.R. Nos. 116617 and 126395, 298 SCRA 495, 506-507 (1998).
[32] People vs. Obello, G.R. No. 108772, 284 SCRA
79, 95 (1998).
[33] People vs. Salva, G.R. No. 132351, January 10, 2002, p.
12; People vs. Guzman, G.R. No. 132750, December 14, 2001, p.
14; People vs. Herrera, G.R. Nos. 140557-58, December 5, 2001,
p. 23.