336 Phil. 771
HERMOSISIMA, JR., J.:
"That on or about March 22, 1987, in the Municipality of Aparri, Province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Mario Tabaco, armed with a gun, with intent to kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and feloniously assault, attack and shoot one [name], inflicting upon him several wounds which caused his death.In Criminal Case No. 10-316, accused was charged in the following information with the complex crime of Homicide and Frustrated Homicide for shooting to death Jorge Siriban, Jr. and the wounding of Sgt. Benito Raquepo:
Contrary to Law."[1]
"That on or about March 22, 1987, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused, Mario Tabaco, armed with a gun, with intent to kill, did then and there wilfully, unlawfully and feloniously assault, attack and shoot Jorge Siriban, Jr., and S/Sgt. Benito Raquepo, inflicting upon them wounds on their bodies, which wounds sustained by Jorge Siriban, Jr., caused his death.All cases were consolidated before Branch 10 of the Regional Trial Court of Aparri, Cagayan.
That the accused had performed all the acts of execution (with respect to the victim Sgt. Benito Raquepo; which would have produced the crime of Homicide as a consequence but which nevertheless, did not produce it by reason of causes independent of his own will."[2]
"In the evening of March 22, 1987, the 17th PC stationed at Aparri, Cagayan, under then Lt. James Andres Melad, sponsored a cock derby, under the name of Jose Ting, at the Octagon Cockpit Arena located at Aparri, Cagayan.Upon the other hand, the evidence for the defense as stated in the Brief for the Accused-appellant is as follows:
This being so, peace officers in uniform with long firearms were assigned as guards to maintain peace and order at the cockpit arena namely: (1) Sgt. Benito Raquepo; (2) CIS Roque P. Datugan, both from the 117th PC and (3) Pat. Andles Semana, INP, Aparri, Cagayan. Accused Mario Tabaco who was in civilian clothes claims to have been also assigned by his Commanding Officer of 117th PC, to verify the presence of NPAs and assist in the protection of VIPs in the cockpit arena, bringing with him his M-14 issued firearm.
Other peace officers who came to participate were: (1) Policeman Mariano Retreta of INP, Buguey, Cagayan, who arrived with the deceased Jorge Siriban and Licerio Antiporda, Jr., Licerio Antiporda II; (2) Sgt. Rogelio Ferrer of 117th PC Company; (3) Policeman Romeo Regunton (deceased) who was also armed, arrived in company with the deceased Ex-Mayor Arreola; (4) Fireman Rogelio Guimmayen, INP Buguey; (5) Pat. Barba; and (6) CIC PC Paragas.
At about nine (9) o'clock in the evening of same date, the group of the late Mayor Jorge Arreola of Buguey, Cagayan, arrived at the cockpit arena. His companions were (1) Antonio Villasin; (2) Rosario Peneyra; (3) victim Lorclo Pita, Jr. and/or five (5) of them including the Mayor. They occupied and were (4th row) north western part cockpit-gate. Others seated with the Mayor were: (1) the late Capt. Oscar Tabulog; (2) the late Pat. Romeo Regunton, who was at the back of the mayor; (3) the late Felicito Rigunan. The accused CIC Tabaco was seated on the arm of the bench situated at the lower portion of the arena about more than three (3) meters away, (infront and a little bit in the west), from the place where the late Mayor and his group were seated (at the 4th row of seats upper portion). During the ocular inspection conducted, the Court noticed the distance to be more than three (3) meters, and/or probably 4-5 meters.
At about ten(10) o'clock 1987, while the accused Mario Tabaco was seated as described above, he suddenly without warning or provocation, shot the late mayor Jorge Arreola, with his M-14 rifle, followed by several successive burst of gunfire, resulting in the shooting to death of the late Mayor Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Pat. Romeo Regunton, although the latter managed to run passing through the western gate near the gaffers cage but was chased by accused Tabaco. Regunton was later found dead inside the canteen of Mrs. Amparo Go inside the Octagon cockpit arena.
Pat. Mariano Retreta of INP Buguey, who was then at the Co's canteen, saw the accused going out rushing from the cockpit arena, at a distance of one meter. Pat. Retreta is a relative and neighbor of the accused Tabaco in Buguey, Cagayan. He tried to pacify Tabaco telling him 'what is that happened again Mario.' Meanwhile, Sgt. Benito Raquepo of 117th PC, and one of those assigned to maintain peace and order at the Octagon cockpit arena, who was at the canteen taking snacks, heard five (5) successive gun reports coming from inside the cockpit arena. In a little while, he saw the accused Tabaco coming from inside the cockpit arena. Raquepo advised Tabaco — 'Mario relax ka lang' — 'Mario keep calm.' They stood face to face holding their rifles and when Tabaco pointed his gun towards Sgt. Raquepo, Pat. Retreta grappled for the possession of the gun to disarm Tabaco, and in the process, the gun went off hitting Sgt. Raquepo and also the late Jorge Siriban who happened to be near Raquepo. Siriban died on the spot while Raquepo survived his wounds on his legs due to adequate medical treatment.
There were other persons injured that evening namely: (1) Antonio Chan — injured on his right foot; (2) Salvador Berbano — injured on his right forearm and on his right abdomen and (3) Rosario Peneyra on his face and right shoulder. But, the three, did not file their complaints."[3]
"Ordered by his commanding officer in the 117th PC Company to assist in the maintenance of peace and order at the Octagon Cockpit Arena located at Talungan, Aparri, Cagayan on March 22, 1987, accused Mario Tabaco with his officially issued M-14 rifle and with the basic load of ammunition went to the Octagon Cockpit arena on March 22, 1987 in compliance to the orders of a superior officer arriving thereat at about 12:00 o'clock noon, more or less. He directly went inside the cockpit arena to make some observations and found out that there were several persons inside the said cockpit who were in possession of firearms, some short and some long, and were seen in different places and/or corners of the cockpit. Accused did not bother to verify as to why the said persons were allowed to carry their firearms because of his impressions that if they did not have the authority, the guards of the main gate of the cockpit would surely have confiscated the same from them. It was his belief then that they may have come from other agencies of the government, assigned to help in the maintenance of peace and order in the cockpit, Accused thus seated himself at the lowermost seat (first step) of the slanted bleachers of the Octagon Cockpit arena on March 22, 1987.After trial, the court a quo, in a joint decision dated January 14, 1991, found accused-appellant guilty as charged on all counts. In giving credence to the version of the prosecution over that of accused-appellant, it found that:
At about 9:00 o'clock that very night of March 22, 1987, while accused was seated at the lowermost seat of the slanted bleachers of the Octagon Cockpit arena, he heard a gun report fired atop his head. Having been officially assigned to help in the maintenance of peace and order in the cockpit and that his presence must be known, his immediate reaction upon hearing the gun report was to fire a warning shot in the air and directed to the ceiling and/or roof of the Octagon cockpit arena. After firing a warning shot, his warning was answered by burst of gun fire coming from different directions inside the cockpit arena, for which reason, he forced to leave and rush outside, holding his M-14 rifle with the muzzle pointed downwards. As he (accused) rushed towards the main gate of the cockpit arena, Mariano Retreta and Sgt. Benito Raquepo saw him and who told him, (accused) to relax lang. Accused testified that when Mariano Retreta and Sgt. Benito Raquepo told him to relax lang, he all the time thought that the gun reports fired inside the cockpit arena was nothing to said persons. Accused however, insisted to go out, but in so doing, Mariano Retreta pressed the gun which he was holding downwards and grabbed said gun from accused. As the gun was pressed by Mariano Retreta, said gun went off, hitting Sgt. Benito Raquepo and the death of Jorge Siriban, Jr. That because of such incident, accused had to run away, out of fear to Sgt. Benito Raquepo and the family of Jorge Siriban who may lay the blame on him. The following morning, accused surrendered to the police authorities of Lallo, Cagayan, who happened to pass by, not on account of the death of Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Oscar Regunton which he did not know at the time he surrendered, but on account of the death of Jorge Siriban, Jr. and the injury sustained by Sgt. Benito Raquepo."[4]
"From the evidence adduced, it is easily discernible that the prosecution and defense cannot agree on what actually transpired that night of March 22, 1987, at the Octagon Cockpit Arena, Aparri, Cagayan leading to the shooting to death of subject victims. For, while the prosecution maintains that it was the accused Mario Tabaco who shot the victims, the defense insists that he is not the assailant, but somebody else or others, since the accused merely fired a warning shot upwards the roof of the cockpit arena.
In fine, the Court is called upon to resolve the issue of credibility versions. 'Where there are directly conflicting versions of the same incident, the Court, in its search for the truth, perforce has to look for some facts and circumstances which can be used as valuable tools in evaluating the probability or improbability of a testimony for after all, the element of probability is always involved in weighing testimonial evidence. (Carolina Industries, Inc. vs. CMS Stock Brokerage, Inc., et al., L-46908, May 17, 1980, 97 SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485, November 21, 1979, 94 SCRA 461, both citing the case of People vs. Boholst Caballero, L-2349, November 25, 1974, 61 SCRA 180).
Towards this end, the prosecution presented three (3) eyewitnesses, namely: Antonio Villasin, Rosario Peneyra and Fireman Rogelio Guimmayen in the shooting to death of the deceased victims, Ex-Mayor Jorge Arreola, Capt. Oscar Tabulog, Romeo Regunton and Felicito Rigunan. Also, the prosecution presented Sgt. Benito Raquepo, Pat. Mariano Retreta and PC Sgt. Rogelio Ferrer, and three (3) eyewitnesses in the shooting to death of Jorge Siriban and the wounding of Sgt. Raquepo. So too, the prosecution presented PC Sgt. Antonio Domingo, Pat. Andres Semana, PC Sgt. Jose Algeria and Pat. Merlin Bautista, as corroborative witnesses in both situational cases/incidents. As well stated in the above findings of facts, prosecution witnesses Antonio Villasin and Rosario Peneyra actually saw the accused Mario Tabaco stood up from his seat at the lower front row and in port arm position directed his M-14 rifle towards the place of the late Mayor Arreola, and his group at the 4th row upper portion of the bleachers and fired three successive automatic gun shots that felled Mayor Jorge Arreola, Capt. Oscar Tabulog, Pat. Romeo Regunton and one Felicito Rigunan. This was corroborated by prosecution witness Fireman Rogelio Guimmayen who was then ten (10) meters away from the accused, which was not far, considering that the cockpit arena was well-lighted at that time.
Not only that, immediately after the gun burst of automatic fire, the accused was seen coming out rushing from inside the cockpit arena by INP Pat. Mariano Retreta and PC Sgt. Raquepo, the former being a relative and neighbor, pacified accused Tabaco, telling — 'what is that happened again Mario,' while the latter told him — 'Mario relax ka lang keep calm.' After which Mariano Retreta grappled for the possession of the gun assisted by PC Sgt. Rogelio Ferrer when Tabaco refused to stop. Sgt. Ferrer got the gun M-14 and surrendered it to his Commanding Officer, as corroborated by Sgt. Antonio Domingo, while in the process of disarming the accused Mario Tabaco, when the gun went of, hitting the deceased victim Jorge Siriban and Sgt. Raquepo."[5]
ATTY. VILLENA:
Q: When you took that M-14 from the accused, do you remember if it had a magazine that time?
A: Yes, sir with magazine.
Q: Do you have the magazine now?
A: It is with 117th PC Company, sir.
Q: After taking that M-14 from the accused, did you examine the rifle?
A: Yes, sir, I examined it.
Q: Did you examine the magazine of that rifle?
A: Yes, sir.
Q: Did you examine if there are live bullets?
A: No live bullets, sir. "(TSN, direct examination, Sgt. Ferrer, pp. 44-45, March 26, 1990 session, stenographer L. Tamayo).
Further, Sgt. Ferrer continued:
"PROSECUTOR ATAL:
Q: You likewise mentioned in your direct examination that when you surrendered this gun, M-14, and this magazine, there were no live ammunitions in the magazine?
A: There were two remaining bullets, sir.
Q: How many bullets in all?
A: Twenty, sir.
Q: You said you heard first seven gun reports?
A: Yes, sir I heard seven gun reports. (TSN, continuation of direct examination, Sgt. Ferrer, May 14, 1990 session, Stenographer L. Tamayo).
MORE, there is evidence that empty/spent shells of bullets were found inside the cockpit arena (Exh. 'R' & 'R-1', pp. 157-158, record).
ATTY. ARIOLA:
Q: Showing to you Exh. 'R', do you know whose picture is this?
A: Picture of spent shells.
Q: How about Exh. 'R-1', do you know what is this?
A: The same, sir spent shells. (TSN, PC/CIS Sgt. Investigator Jose Algeria, p. 29, Oct. 1, 1990 session, Stenographer L. Tamayo).
COURT:Set over against the foregoing positive and categorical testimonial declaration of the abovenamed eyewitnesses for the prosecution is the accused-appellant's bare denial of the charges against him. As between the positive identification of the accused by the prosecution witnesses and the bare denial of accused, the choice is not difficult to make. For, it is a settled rule that positive identification by the prosecution witnesses of the accused as perpetrator of the crime is entitled to greater weight than his bare denial and explanation.[18]
Q: You heard gun report, what can you say?
A: I saw that he was the one who made the gun report, sir.
ATTY ARRIOLA:
Q: Who was that 'he' you are referring to?
A: Mario Tabaco, sir. (p. 19, tsn, March 19, 1990)
Q: Why do you say that Mario Tabaco was the one from whom those gun reports come from?
A: Because he was the only person from whom I saw a gun, sir.
Q: What did you do also upon hearing those gun reports?
A: I had to seek shelter, sir.
Q: What happened to Ex-Mayor Arreola?
A: He was hit, sir.
PROSECUTOR MIGUEL:
Q: You said that the accused shot Ex-Mayor Arreola, what kind of weapon did he use if you know?
A: M-14, sir.
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Q: After the incident (precedent) have you come to learn what happened to Regunton?
A: I came to know that he was dead, sir.
Q: Was that all you gathered?
A: Also Capt. Tabulog, sir.
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Q: How many shots did you hear?
A: Three (3) shots, sir.
Q: All those three (3) shots were directed to Ex-Mayor?
A: Yes, sir.
Q: You heard three shots according to you, was that successive or automatic?
A: Successive, sir.
Q: You were seated at the left side of Ex-Mayor Arreola, who was seated on his right side?
A: None, sir.
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Q: Mr. witness, you said that you saw the deceased holding a gun when you first heard gun shot, will you please describe the stands (position) of the accused?
A: Like this. (The witness demonstrated that the accused was standing on a forth (port) arm position).
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Q: What did he do with the gun when you saw him?
A: He fired the gun, sir.
Q: To what the gun was directed when he fired the gun?
A: To Ex-Mayor Arreola, sir.
ATTY. VILLENA:
Q: You said earlier that after the incident you left the cockpit and returned, when you returned, what did you see?
A: I saw two dead persons, sir.
Q: Whose cadavers were these that you saw?
A: The cadavers of Ex-Mayor Arreola and Capt. Tabulog, sir.
Q: How far was the cadaver of Tabulog to Arreola?
A: Less than a meter, sir.
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Q: When you saw the corpse of Capt. Tabulog, can you identify the person passing as you mentioned?
A: They have similarity, sir.
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Q: When you heard first gun shot, can you tell the position of Arreola, you and your companions?
A: We were sitting at the backrest of the 4th seat, sir.
Q: Where were you facing?
A: We were facing south the arena.
Q: Where did the first gun shot came from?
A: It came from Mario Tabaco, sir.
Q: From what direction?
A: Infront of us, sir.
Q: Where was he, was he in your front?
A: He was in the first row of seats.
Q: After the first gun shot, what happened?
A: Somebody was killed, sir.
Q: Who was that?
A: Ex-Mayor Arreola, sir.
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COURT:
Q: How many gun shot reports did you hear?
A: Many, sir.
ATTY. VILLENA:
Q: You said that you heard more gun shots, can you tell the nature, was there in succession or automatic?
A: Automatic, sir.
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Q: Can you tell us your previous occupation?
A: An army man, sir.
Q: How long have you been employed with the army?
A: Five (5) years, sir.
Q: As an army before, have you ever been handled an M-14?
A: Yes, sir.
Q: Can you tell us if you are familiar with M-14 being fired?
A: Yes, sir.
Q: Now, you said earlier that you heard many more shots after you run, would you say that these gun shots you heard were fired from M-14 rifle?
A: Those are that came from M-14, sir.
Q: Where were you at the time when you heard the automatic gun shot?
A: I was outside the cockpit, sir."[12]
On cross-examination by the defense counsel, witness Villasin testified, thus:
"ATTY. CONSIGNA:
Q: You said that after the first gun shot or gun report, Mr. Tabaco was on the first seat downward, is it not?
A: Mr. Tabaco placed his left foot on the first seat aiming his gun, sir.
Q: Directly toward the first seat, is that what you mean?
A: It was directed to Ex-Mayor Arreola.
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Q: I want to make it clear, Mr. witness, it was the first gun that you went to hide yourself at the gate of the cockpit, is that correct?
A: After the 3rd gun shot, sir.
Q: And these three (3) gun reports, they were in a single successive shot, is it not Mr. witness?
A: Yes, sir.
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Q: That person who allegedly passed by you or infront of you prior to the first gun report, did you notice if he had a gun with him?
A: He passed by our back, sir.
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Q: And that person according to you was still there when the late Mayor Arreola was shot?
A: He was directly behind him when the gun reports were made, sir.
Q: You mean to say the first gun report?
A: Yes, sir.
Q: And that first gun report was hit Ex-Mayor Arreola?
A: The three gun reports hit the Mayor, sir."[13]
For his part, Peneyra testified as follows:
"ATTY. ARRIOLA
Q: Do you remember what particular place of the cockpit when you go with Mayor Arreola?
A: Yes, sir.
Q: What part of the cockpit?
A: We went up to the bleacher, sir.
Q: Do you remember how the bleachers were arranged inside the cockpit?
A: Yes, sir.
Q: How were they arranged?
A: In rows, step by step, sir.
COURT:
Q: How many rows?
A: Four rows, sir.
ATTY. ARRIOLA:
Q: And what row did you stay together with the late Mayor Arreola?
A: The late Mayor Arreola and Antonio Villasin took the 4th step, sir.
Q: And how about you?
A: We stood at their back west of them, sir.
Q: By the way, can you tell to the court what were your respective position of the place where you stayed?
A: The late Mayor Arreola and Antonio Villasin sat at the backrest of the fourth step, sir.
Q: And how about you, where did you stay also?
A: I stood at the right back of Mayor Arreola, sir.
Q: And how about Romeo Regunton?
A: He also stayed at the back of Mayor Arreola, sir.
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Q: While you were in that position together with your companions, do you remember if there was untoward incident that happened?
A: Yes, sir.
Q: What was that untoward incident that happened?
A: That was the time when Mario Tabaco shot the late Mayor Arreola, sir.
Q: Do you know what did Mario Tabaco use in shooting the late Arreola?
A: Yes, sir.
Q: What kind of firearm?
A: M-14, sir.
Q: And do you know if Mayor Arreola was hit when Mario Tabaco shot him?
A: Yes, sir.
Q: How do you know that Mayor Arreola was hit?
A: Because I saw it, sir.
Q: What did you do also?
A: When Mayor Arreola was already dead, I sought cover because I was also wounded.
Q: Do you know what happened also to Romeo Regunton?
A: Yes, sir.
Q: What happened to him?
A: When I was wounded he also said, 'uncle I was also wounded.'
Q: What did you tell when he told you that?
A: I told him, 'you seek cover also my son'.
Q: How did Romeo Regunton took cover?
A: He moved slowly by dragging his body along the ground, sir.
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Q: By the way, how far were you from Mario Tabaco who fired upon the person of Mayor Arreola?
A: Probably more than 3 meters, sir."[14]
On cross-examination, this witness testified as follows:
"ATTY. CONSIGNA:
Q: When for the first time when you were already in the cockpit arena did you see the accused Mario Tabaco?
A: Before the shooting, sir.
Q: And approximately how many minutes or seconds did you see Mario Tabaco for the first time prior to the shooting incident?
A: Probably 5 minutes before, sir.
Q: And in that place of the cockpit arena have you seen the accused herein Mario Tabaco?
A: He sat on the first row of the seats.
Q: And sitting on the first row of the bleachers, on what part of the cockpit arena did Mario Tabaco, the accused sit?
A: He sat a little bit west of us, sir.
COURT:
Q: How far?
A: Probably more than 3 meters, sir.
Q: A little bit to the west, do I get from you that he was seated on the western part o the cockpit?
A: A little to the west, sir.
Q: And you together with the late Mayor Arreola were also on the western part of the cockpit?
A: We were on the northwest.
Q: Mario Tabaco, therefore, the accused in these cases was not directly in front of you?
A: A little bit west of us, sir.
Q: It was on that position of the accused Mario Tabaco and your position with the late Arreola on the northwest when you according to you saw Mario Tabaco fired his gun, is that what you mean?
A: Yes, sir.
Q: That the accused Mario Tabaco was on the first row when he allegedly shot on Mayor Arreola who was on 4th row, is that what you mean?
A: Mario Tabaco stood up and faced us, sir.
Q: So while Mario Tabaco stood up and faced towards the direction where you were together with the late Mayor Arreola still Mario Tabaco was on the floor of the cockpit arena?
A: Yes, sir, on the cemented floor.
Q: And immediately after you heard the first shot coming from the accused Mario Tabaco considering that you were right behind the late Mayor Arreola, as you have stated in your direct examination you immediately sought cover?
A: I only lay flat to the floor of the cockpit when Mario Tabaco fired three (3) shots.
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Q: At the time you laid flat facing down and you did not come to know that Mayor Arreola was dead already?
A: Why not, the first and second shots, I know him that he was already dead.
Q: And the three (3) shots that you heard were all directed towards Mayor Arreola?
A: Yes, sir, in our place.
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COURT:
Q: To whom the 3rd shot directed?
A: In our place, sir.
Q: No person was involved on the 3rd shot?
A: That was also the time when Romeo Regunton came toward me and told me that he was also hit.
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COURT:
Q: You don't know the person who shot him?
A: It was Mario Tabaco because he was still firing then, sir.
Q: You do not know the person who shot him?
A: It was Mario Tabaco because he was still firing then, sir."[15]
The above testimonies of Villasin and Peneyra pointing to accused-appellant as the assailant in the shooting of the ex-mayor and his companions were corroborated further by the testimony of another eyewitness in the person of Rogelio Guimmayen. His account of the incident is as follows:
"PROSECUTOR ABAD:
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Q: How far were you from Tabaco when you saw him holding that gun?
A: More or less ten (10) meters, sir.
Q: Where was he at that specific time and place?
A: Inside the cockpit, sir.
Q: Where were you also?
A: I was at the stairs, sir.
Q: When you saw him what happened if any?
A: When he entered he stopped and then the gun fired and that was the time when I got down, sir.
Q: Did you see to whom he was directing the gun?
A: It was directed to the Mayor's place, sir.
Q: How far was the Mayor from the accused Mario Tabaco?
A: More or less three (3) meters only. There was only one bench between them, sir.
Q: Did you see the accused firing his gun towards the Mayor?
A: With his first shot which was directed to the Mayor that was the time I got down to hide myself, sir."[16]
On cross-examination, this witness testified as follows:
"ATTY. CONSIGNA:
Q: So, it was at the time you were inside the cockpit arena that you heard gunfire?
A: Yes, sir.
Q: And you did not see who fired that gunfire while you were inside the cockpit arena?
A: When I was inside, I saw Mario Tabaco pointing a gun to the Mayor and the gun went off and that's the time I took cover, sir.
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Q: And that was the last time you heard burst of gunfire inside the cockpit arena?
A: When I went outside, I heard shots inside and outside."[17]
The trial court misappreciated the facts in People vs. Pama. In said case, there was only one bullet which killed two persons. Hence, there was only a single act which produced two crimes, resulting in a specie of complex crime known as a compound crime, wherein a single act produces two or more grave or less grave felonies. In the case at bench, there was more than one bullet expended by the accused-appellant in killing the four victims. The evidence adduced by the prosecution show that Tabaco entered the cockpit with a fully loaded M-14 sub-machine gun.[28] He fired the weapon, which contained 20 rounds of bullets in its magazine, continuously. When the rifle was recovered from Tabaco, the magazine was already empty. Moreover, several spent shells were recovered from the scene of the crime. Hence, the ruling enunciated in People vs. Pama cannot be applied. On the contrary, what is on all fours with the case at bench is the ruling laid down in People vs. Desierto[29]. The accused in that case killed five persons with a Thompson sub-machine gun, an automatic firearm which, like the M-14, is capable of firing continuously. As stated therein:In Desierto, although the burst of shots was caused by one single act of pressing the trigger of the Thompson sub-machine gun, in view of its special mechanism, the person firing it has only to keep pressing the trigger with his finger and it would fire continually. Hence, it is not the act of pressing the trigger which should produce the several felonies, but the number of bullets which actually produced them.[30]
"In the case at bar, Article 48 of the Revised Penal Code is not applicable because the death of each of the five persons who were killed by appellant and the physical injuries inflicted upon each of the two other persons injured were not caused by the performance by the accused of one simple act as provided for by said article. Although it is true that several successive shots were fired by the accused in a short space of time, yet the factor which must be taken into consideration is that, to each death caused or physical injuries inflicted upon the victims, corresponds a distinct and separate shot fired by the accused, who thus made himself criminally liable for as many offenses as those resulting from every singe act that produced the same. Although apparently he perpetrated a series of offenses successively in a matter of seconds, yet each person killed and each person injured by him became the victim, respectively, of a separate crime of homicide or frustrated homicide. Except for the fact that five crimes of homicide and two cases of frustrated homicide were committed successively during the tragic incident, legally speaking there is nothing that would connect one of them with its companion offenses." (emphasis ours)
"Where the death of two persons does not result from a single act but from two different shots, two separate murders, and not a complex crime, are committed."Furthermore, the trial court's reliance on the case of People vs. Lawas[35] is misplaced. The doctrine enunciated in said case only applies when it is impossible to ascertain the individual deaths caused by numerous killers. In the case at bench, all of the deaths are attributed, beyond a shadow of a doubt, to the accused-appellant.