366 Phil. 527
"That on or about the 18th day of January, 1996, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery and evident premeditation while armed with a gun, did then and there, willfully, unlawfully and feloniously shoot one LUISITO PALENCIA y TOBIAS hitting him four (4) times on the different parts of his body, as a consequence said LUISITO PALENCIA y TOBIAS, sustained injuries which directly caused his death."On April 24, 1996, accused-appellant was arraigned whereupon he entered a plea of not guilty to the crime charged.
"1. that he is duly qualified and competent as a physician and medico-legal officer who had conducted an autopsy examination;The prosecution's last witness was SPO2 Benjamin Querubin who testified that on February 5, 1996, Jojo Bungo was arrested outside his residence at Bagong Bantay, Quezon City after a six-hour stakeout. At the time of arrest, a .38 snub nose "paltik" revolver was recovered from Silvestre after he was frisked. He also identified Jojo Bungo in court.
2. that he conducted the actual autopsy on the cadaver of the victim in this case by the name of Luisito Palencia to be marked as Exhibit B;
3. that in the course of the autopsy examination the witness prepared a sketch of the human body showing the locations and number of gunshot wounds sustained by the victim marked as Exhibit C;
4. that in the course of its examination he extracted a slug embedded on the said victim which cannot be traced to any gun because there was no ballistic examination; and,
5. that the final report containing the findings and conclusions particularly with respect to the fact and cause of death was prepared, thereby dispensing with the actual presentation of Dr. Bondoc as a prosecution witness."
"I will no longer present the accused. I am offering Exh. 1, 1-A and 1-A-1 a statement taken by SPO1 Castillo immediately after the incident took the statement of witness Bernadette Matias on 18 of January, 1996 at 1:00 o'clock in the afternoon and in that affidavit statement the witness stated that the suspect that she does know the name of the suspect and he is 5'5 between 120 to 130 ang bigat and kulot ang mabuhok, maiksi ang buhok, brushed up, likewise Exh. 1-A-1 the word `kayumanggi' on Question No. 7 answer of the witness is to prove the person whom the eyewitness saw who shot the victim was a `kayumanggi' likewise offering this affidavit as part of his testimony of the witness."The prosecution objected to the purpose for which the exhibit was offered since the affidavit was not presented for identification; and the Court admitted it only as proof of its existence and contents.
"WHEREFORE, premises considered, judgment is hereby rendered finding accused Jose Silvestre y Cruz @ Jojo Bungo GUILTY beyond reasonable doubt of the crime of murder and he is hereby accordingly sentenced to the prison term of reclusion perpetua.Hence, this appeal where accused assigns the following errors:
Accused Silvestre is also ordered to pay Mrs. Marina Palencia, the following amounts: (1) P66,500.00 for the actual expenses spent in connection with the death and burial of Luisito; (2) P50,000.00 for the loss of Luisito's life; (3) P100,000.00 by way of moral damages for the pain and anguish suffered by the victim's family due to the untimely death of Luisito and an additional amount equivalent to three (3) years salary computed at the rate of P14,877.00 a month corresponding to Luisito's monthly salary by way of lost income.
Costs against accused Silvestre.
Malabon, Metro Manila, August 7, 1996."
"I. THE GUILT OF THE ACCUSED WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT OR PROSECUTION EVIDENCE HAS NOT OVER-COME ACCUSED CONSTITUTIONAL PRESUMPTION OF INNOCENCE.The accused-appellant argues that the lower court erred in finding the accused guilty beyond reasonable doubt on the basis of the lone testimony of Felicitas Torres. According to the accused-appellant, Torres testified that she did not actually witness the accused shooting the victim because she merely heard two shots fired and sought cover for a short while, and hence it was doubtful whether she saw the man with a gun shooting at the fallen man two more times. As it was a startling or frightful experience for a woman, it was not probable that she was brave enough to witness the shooting which was merely five arm's length away from her; and that the prosecution witness merely speculated on the identity of the perpetrator from what she heard i.e., "binaril na ni Jojo si Palencia."
II. THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED SOLELY BASED ON THE LONE TESTIMONY OF PROSECUTION'S PRINCIPAL WITNESS WHO IS NOT CREDIBLE AND POSITIVE.
III. THE COURT A QUO GRAVELY ERRED IN TREATING JUDICIAL ADMISSION OF THE PARTIES AS HEARSAY IN CHARACTER.
IV. THE COURT A QUO ERRED IN APPRECIATING EVIDENT PREMEDITATION AND TREACHERY FOR WANT OF EVIDENCE.
THE COURT A QUO ERRED IN SENTENCING ACCUSED OF A PRISON TERM OF RECLUSION PERPETUA.
VI. THE COURT A QUO ERRED IN ORDERING PAYMENT OF ACTUAL, MORAL DAMAGES, LOST OF INCOME ABSENCE OF PROOF IN SUPPORT THEREOF OR FORMALLY OFFERED IN EVIDENCE."
Felicitas Torres categorically stated that she saw the accused Jose Silvestre whom she identified in Court, shoot at the fallen man two times after hearing two gunshots. While she did not see the accused-appellant actually fire the first two shots, she turned her head upon hearing the two gunshots and saw a man slumped on the ground and a man with a gun beside him. After seeking cover for a short while, she saw the man with the gun shoot the fallen man two more times moments after the first two shots were fired. This leads to no other logical conclusion than that the accused-appellant was the one who fired them.
Q. Now, at 11:45 in the morning of January 18, 1996, do you remember where you were? A. I was then near Concepcion Bakery. Q. Will you please tell us in what municipality is this Concepcion Bakery located? A. Malabon, Metro Manila. Q. Now, what were you doing at that time? A.
Buying bread, sir.
Q. Were you able to buy bread? A. Yes, sir. Q. After buying bread what did you do, if any? A. I waited for a tricycle to go home. Q. And you said you were waiting for a tricycle in going home when you said going home you are referring to Hulo, Malabon? A. Yes, sir. Q.
While you were waiting what happened while you were waiting for a ride?
A. I noticed something, sir. Q. What was that you noticed? A. I noticed a man and a woman talking with each other. Q. How far were you more or less from this man and woman who was conversing with each other? A. More or less five arms length. Q. Now, what happened after that, if any? A. I heard two shots then I turned my head. Q. Now, when you turned your head after hearing two shots, what did you see if any? A.
And then I saw a man slumped head face down.
Q. What else did you see? A. Then I saw besides that man slumped on the ground a man with a gun. Q.
What then did you do if any after that?
A. I sought cover for a short while. Q. What happened after seeking cover? A. Then I saw that man with a gun shot the man two times more. Q. Now who was this man whom you saw fired twice more the man who was slumped face down. A. I do not know him personally but I recognized him. Q. Now, if you see this man were you be able to identify him? A. Yes, sir. Q. Now, look around and point him to us if he is inside the Court room? A. Witness pointing to the person, step down and approached the person whom she pointed to and when asked to stand and asked his name, he answered Jose Silvestre. Q. Now, after firing two more shots at the man whom you saw "pasubsob", what then did the accused do if any? A.
I do not know anymore because I boarded a jeep after he fired the last two shots.
Q. Now, while you were boarding that vehicle that you take home did you hear anything on that occasion? A. There was a commotion and then I heard "binaril na ni Jojo si Palencia". Q. When did you come to know the complete name of Palencia? A. When I went to PLDT office. Q. When was that? A. February 5, 1996. Q. Do you recall what happened when you went to the PLDT before that which place of PLDT did you go on February 5? A. Malabon office, sir. Q. Now, do you remember what happened when you went at PLDT branch in Malabon? A. I heard that no one wanted to testify for Palencia. Q. From whom did you hear this? A. From the PLDT personnel. Q. So, what then did you do, if any? A. I approached one of them. Q. For what purpose did you approach this PLDT employee? A. I told him about the killing incident that I witnessed. Q. What did this PLDT employee do, if any? A. He brought me to the office of PLDT at the second floor. Q. What happened at the second floor of PLDT office at Malabon? A. I said I will testify. Q. What then happened after that? A. The complainant was called as she is a resident of Bulacan. Q. Now, did the complainant arrive? A. In the afternoon, sir. Q. Now, after the arrival, by the way, who was that person who arrived? A. Mrs. Palencia, sir. Q. After Mrs. Palencia arrived what happened, if any? A. The PLDT employee told her that I will be the one to testify in their favor. Q. After that what happened? A. Then after that we proceeded to the Malabon police station. Q. What happened at the headquarters of Malabon? A. My statement was taken down."
The autopsy report shows that the victim sustained four (4) gunshot wounds. This tallies with the testimony of Torres whose account of the events reveals that a total of four shots was fired.
"FINDINGS: 1 Abrasions/Contusions: forehead, left. 2 Lacerated Wound: eyebrow, left, 22 mm. 3
3.1 angle of mandible, left, 9 mm., directed superiorly, posteriorly and medially. 3.2 back, level of L2, PVL, left, 11 mm., directed anteriorly, superiorly and slightly laterally, non-penetrating. 4 Gunshot Wounds: 4.1 POE: back, level of L2, PVL, right, 8 x 10 mm., directed anteriorly, superiorly and medially, puncturing the right lobe of the liver from inferior to superior, puncturing the diaphragm, and lacerating the heart from the posterior wall of the right ventricle to the anterior wall of the left atrium, and puncturing the anterior chest wall; POX: none. A metallic slug, 9 x 18 mm. was recovered from the subcutaneous tissues of the anterior chest wall, along the 2nd ICS, MCL, left. 4.2 POE: nape, level of C5, right, 8 x 8 mm., directed anteriorly, inferiorly and slightly medially, fracturing T1;
POX: none. The slug embedded within the spinal canal.
4.3 POE: abdomen, AAL, just above the anterior iliac spine, right, 10 x 12 mm., directed posteriorly, inferiorly and medially;
POX: none. The slug was embedded deep within the muscle tissues of the right thigh
4.4 POE: abdomen, MAL, just above the iliac crest, left, 10 x 12 mm., directed posteriorly, inferiorly and medially; POX: none. The slug was embedded deep within the muscle tissues of the left thigh. 5. Hemopericardium, massive. 6. Hemoperitoneum, moderate. CAUSE OF DEATH: Cardiorespiratory Arrest due to Hemorrhagic Shock due to Multiple Gunshot Wounds, Back and Nape."
While on cross-examination, Torres testified that:
"Question # 22.
T: Inihaharap ko ngayon sa iyo ang taong ito, ano ang masasabi mo sa kanya? (This investigator confronting affiant with the suspect who is presently under detention at the Malabon Municipal Jail.) S: Siya nga ho ang nakita kong bumaril kay Tito Palencia. (Affiant pointing to the suspect Jojo Bungo whose real identity is JOSE SILVESTRE Y CRUZ, 40 yrs. old, married, jobless, and res at 240 C. Arellano St., Baritan, Malabon, Metro-Manila.)"
There is nothing in the testimony of Torres nor in her sworn statement that would show that the police suggested that the suspect to be presented to her was Jojo Bungo. The police merely asked what she could say about the person presented to her, and she spontaneously answered that he was the one who shot Luisito Palencia. She was only informed that the person presented was Jojo Bungo after she had already pointed him out. She could not have been mistaken in her identification of the gunman as she was only five arm's length away from them when the shooting occurred. During her cross-examination, she explained how she was able to see the face of the gunman as follows:
"Q. Now when you were already at the police station of Malabon with the employee of PLDT in the name of Jun whom did you talk to? A. Jun asked them who is the investigator because I was going to give a statement. Q. Then where were you when Jun asked about the investigator? A. I was at the lobby, sir. Q. You were left by Jun at the lobby of the police station? A. Yes, sir. Q. And Jun went somewhere else inside the police station. A. Yes, sir. Q. So, at the time Jojo the alleged assailant was not still around? A. Yes, sir. Q. When Jun the police investigator came out they were already or Jun was already with them? A. I gave the statement first. Q. Now, while you are giving your statement to the police investigator who was with you? A. No one because I was told to enter the room alone. COURT: Q.
Now Jojo Bungo was eventually presented to you, is that not correct?
Q. Did you point him the assailant face to face? A.
Q. And what was his reaction as being pointed to you as the assailant? A Nothing. Q. Did he not deny the accusation against him? A. He did not, sir. ATTY. SIRUELO: Q. Now, when he was presented for your identification he was alone? A. Yes, sir. Q. And you were told that this was Jojo Bungo? A. Yes, sir."
Appellant also argues that the court a quo erred in treating the judicial admission of the statement of Bernadette Matias made by the prosecution as hearsay. The records show that the prosecution only admitted the existence and contents of the supposed statement made by Bernadette Matias as shown by the following excerpt from the transcript:
xxx when you arrived there at the headquarters you were already confronted with the suspect Jojo?
A. Yes, sir. Q. And that was only the first time that you saw his face? FISCAL ACUÑA:
COURT: Witness may answer. WITNESS: A. No, because I saw him when he shot the victim. ATTY. SIRUELO: Q. You testified that during those dates that you saw the assailant at the actual place of incident thru his back only, is that not correct? FISCAL ACUÑA: That is misleading. COURT: Let us put this way. Q. On direct examination you said you saw a person who turned out to be Jojo Bungo shooting at the victim who was already lying on the ground face down. On direct examination you said that when you again saw the assailant Jojo for the first time his back was turned to you. Now, the question is: how then did you see his face or recognize him as you claim? A. Because he was turning his head from side to side."
The appellee's admission only referred to the fact that the statement was made by Matias. In People vs. Gaddi, it was ruled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that the statement was made, it is not hearsay. The lower court was therefore correct in admitting only the existence and contents and not the truth or veracity of the unsworn statement of Matias as an "independently relevant statement" This statement cannot be used to establish the veracity of it; it would be hearsay as Matias was not presented in Court.
My next witness is SPO1 Crizaldo Castillo he was subpoenaed, Your Honor. Court: Can we not have stipulation or admissions concerning the testimony of Castillo as corroborative only of that of Balacaña? Atty.: No, Your Honor, very material on our defense on the conflicting testimony of the witness. Court:
Do you have a copy thereof?
I am referring to the witness, Bernadette Matias. I have a statement of the other witness. Court: Then show it to the Fiscal and probably the Fiscal can admit it. Fiscal: The reason why we did not present the witness because she was afraid in fact that was sworn to. Court: The existence and contents you can admit it Fiscal? Fiscal: Yes, Your Honor. Court: So we can dispense with the testimony of Castillo."
"A person being shot at while standing in a public place and talking to a woman must have been shot with evident premeditation and treachery because he was unaware of the impending attack which prevented him from putting up a defense that will repel the attack that will also place the attacker under some sort of risk by reason of said defense. After having fallen to the ground head first, said person's being shot two times more would have been indicative of the treacherous plan to kill him."There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, two elements must concur: (1) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution is deliberately or consciously adopted.
1.) the time when the accused determined to commit the crime;Neither are we convinced that evident premeditation was proven. The records are bereft of evidence of any of the above requisites of evident premeditation. There is absolutely no proof of the time the accused decided to commit the crime. There is no showing how the accused, Jose Silvestre, planned the killing of the victim, Luisito Palencia. Neither is there any showing of how much time elapsed before he executed his plan. Absent all these, evident premeditation cannot be appreciated.
2.) an act manifestly indicating that the accused has clung to his determination; and
3.) sufficient time between such determination and execution to allow him to reflect upon the consequences of his act.
Net Earning Capacity (x)
life expectancy [2/3(80-age at death)]
Gross Annual Income (GAI)
living expenses (50% of GAI) x = 2(80-44) 3 x 178,524.00 - 89,262.00 x = 24 x 89,262.00