378 Phil. 78
"WHEREFORE, Judgment is rendered as follows:Filed on June 28, 1994, the Informations against accused-appellant, alleges:
1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto Loreto Ringor Guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code as amended by Section 6, RA 7659, qualified by Treachery and as further qualified by the use of an unlicensed firearm and hereby sentences him to suffer the supreme penalty of Death; to indemnify the heirs of deceased Marcelino Florida, Jr., the sum of P50,000.00 for his death and the sum of P100,000.00 as Moral damages for his death, both indemnification being without subsidiary imprisonment in case of insolvency and to pay the costs.
2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto Ringor Guilty beyond reasonable doubt of the offense of Violation of Section 1 PD 1866 (Illegal Possession of firearm and ammunitions) as charged in the Information and hereby sentences him, applying the Indeterminate Sentence Law, to an imprisonment ranging from 17 years 4 months and I day as Minimum to 20 years as Maximum and to pay the costs.
The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A) being the subject of the offense is hereby declared confiscated and forfeited in favor of the State.
The accused Augusto Loreto Ringor is entitled to be credited in the service of his sentence four fifth (4/5) of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code.
In Criminal Case No. 13102-RWith the accused-appellant, assisted by counsel, entering a plea of Not Guilty upon arraignment, a joint trial of the two cases ensued."That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with a Caliber 38 handgun paltick with Serial Number 853169 and with intent to kill, did then and there willfully, unlawfully, and feloniously attack, assault and shoot MARCELINO BUSLAY FLORIDA, JR. thereby inflicting upon the latter hypovolemic shock secondary to massive hemorrhage; multiple gunshot wounds of the liver, stomach, small intestine and mesentric blood vessels, which injuries directly caused his death.and in Criminal Case No. 13100-R
That the qualifying circumstance of TREACHERY attended the commission of the crime when the accused suddenly attacked victim and shot him several times at the back, with the use of a handgun, thus employing means, methods of forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.
CONTRARY TO LAW.""That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously possess and carry outside of his residence, a firearm, Caliber .38 revolver (Paltik) bearing Serial Number 853169, without any legal authority or permit from any government official or authority concerned, in violation of the above cited provision of law.
CONTRARY TO LAW."
"On June 23, 1994, at around 6:00 P.M.(sic), Fely Batanes, a waitress at People's Restaurant located at Kalantiao St., Baguio City, saw appellant Ringor and his two companions enter the restaurant. (Tsn, December 8, 1994, p. 4). After seating themselves, the group ordered a bottle of gin (ibid., p. 6). Minutes later, appellant approached one of the tables where Florida, the restaurant's cook was drinking beer. Without any warning, appellant pulled Florida's hair and poked a knife on the latter's throat. Florida stood up and pleaded with appellant not to harm him (ibid., p. 7). Appellant relented and released his grip on Florida. Thereafter, he left the restaurant together with his companions. However, a few minutes latter he was back (ibid, p.8).The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a Necropsy Report, which states:
Appellant brandished a gun and menacingly entered the restaurant. Not encountering any resistance, he thus proceeded to the kitchen where Florida worked (ibid). Stealthily approaching Florida from behind, appellant fired six successive shots at Florida who fell down (Ibid., p. 9). His evil deed accomplished, appellant left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at onlookers that the person he was running after was armed and had just killed somebody. Alerted, SPO2 Fernandez, who was then in the vicinity, went into action and nabbed appellant. He frisked appellant and recovered from him a Paltik revolver, caliber. 38, with Serial Number 853169 (Exh. A). He checked the revolver's cylinder and found six empty cartridges (Exhs. T to T-6). He noted that it smelled of gunpowder. He and PO1 Ortega turned over appellant and the confiscated firearm to the Investigation Division of the Baguio Police and then executed a Joint Affidavit of Arrest (Exhibit O). On the same night, Fely Batanes gave her sworn statement (Exhibit E) to the Baguio Police wherein she positively identified appellant as the assailant."
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NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive for nitrates as stated in her Chemist Report No. C-94-22. She conducted a microscopic chemical examination on the subject firearm and found that the gun was fired within one week prior to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI, Manila, tested and concluded that the slugs recovered from the victim were fired from appellant's firearm. Upon verification from the Firearms Explosive division, Camp Crame, Quezon City, it was found that appellant is not a licensed firearm holder nor, was the subject firearm duly registered with the said office (Exh. A)."
Accused-appellant admitted shooting the victim but theorized that he acted in self-defense. As embodied in the Appellant's Brief, the defense version runs thus:
`Body of a male, 1.66 m. height, medium built, with complete rigor mortis, lividity well developed on the dependent parts, cloudy cornea and dilated pupils with very pale papebral conjunctive.
`Gunshot wounds: GSW no.1 measuring 10 x 10 mm. serrated edges, positive powder burns located at the left mid clavicular line, posterior, 2 inches below the shoulder. It was directed downward towards the mid-body, penetrating the skin. (sic) soft tissue, middle 3rd of the 3rd rib, the upper and lower lobes of the left lung to the diaphragm, through and through the stomach, lacerating the superior mesentric vessels, perforating the small intestine then lodged at the superior surface of the urinary bladder (slug was recovered marked no. 1)
`GSW no.2 measures 8 mm. diameter, positive powder burns, located on the right shoulder near the s. joint posteriorly, penetrating the skin, soft tissue, then lodged at the surface of the fractured surgical neck of the humorous (sic) (slug recovered). Marked no. 2.
`GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the right shoulder posteriorly near the joint penetrating the skin, soft tissues, and the head of the Humorous, (sic) then dislodged form the same entry point.
`GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located at the anterior left parasternal line at the level of the 6th ICS. It was directed downward towards the posterior of the body, penetrating the skin, soft tissue, the left lobe of the liver with partial avulsion, then perforating the stomach through and though the duodenum lumbar muscle then lodged underneath the skin, (1) paravertebral, level of L3 (slug recovered marked no. 4).
`CAUSE OF DEATH:
`HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE; MULTIPLE GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL INTESTINE AND MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s) of the body.'
"3.01 On June 23, 1994, at a little after five o'clock in the afternoon, appellant, together with two (2) other companions, entered the People's Restaurant in Baguio City to order drinks. They sat at a table next to another then occupied by Marcelino B. Florida, Jr. (`Florida') and a woman companion (TSN, Testimony of Augusto Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6).On November 13, 1995, the trial court handed down the decision under automatic review. Accused-appellant contends that:
3.02 Soon after receiving their orders, appellant's companion, Ramon Fernandez, stood up and approached Florida to inquire about his (Fernandez') brother, Cesar. Florida angrily responded to the query and said, `Putang ina ninyo! anong pakialam ko diyan!'
3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the appellant to intervene and pacify Fernandez. When Fernandez drew out a gun from his waist, appellant immediately seized the same directing his friend to leave the restaurant before he started hurting other people with his gun. No sooner had Fernandez stepped out, however, Florida, armed with a bolo, came charging in from the kitchen and headed towards the appellant. (Ibid, pp. 6 - 7)
3.04 Surprised, appellant shot Florida with the gun he was holding just as the latter was about to hit him with the bolo. Thereafter, appellant put the gun on the table and walked out of the restaurant. Once already outside the restaurant, appellant's other companion, Virgilio, followed him and handed to him the gun he (appellant) left at the table. He then proceeded to surrender the gun and report the incident at the nearest police station. (Ibid, pp. 8 - 9)
3.05 Before appellant could reach the police station, however, appellant was already arrested by off-duty policeman who brought him back to the People's Restaurant. Appellant was thereafter incarcerated at the Baguio City Police Station. (Ibid, pp. 10 - 12)"
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing. The onus probandi is thus shifted to him to prove the elements of self-defense and that the killing was justified; otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence.
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM TO SUFFER AN INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY AS MINIMUM TO 20 YEARS AS MAXIMUM.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER.
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF MURDER WAS NOT PROVED BY THE PROSECUTION; AND (ii) ASSUMING ARGUENDO THAT MURDER WAS COMMITTED BY APPELLANT, THE APPROPRIATE PENALTY FOR THE OFFENSE IS RECLUSION PERPETUA THERE BEING NO AGGRAVATING CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH.
"Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term `penalty' in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for for homicide or murder. We explicitly stated in Tac-an:Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed firearm as an aggravating circumstance in murder or homicide, the penalty for the murder committed by accused-appellant on June 23, 1994 was not death, as erroneously imposed by the trial court. There was yet no such aggravating circumstance of use of unlicensed firearm to raise the penalty for murder from reclusion perpetua to death, at the time of commission of the crime.There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or muder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code.A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.' (Emphasis supplied)