521 Phil. 404
"WHEREFORE, subject to the modification thus indicated, the judgment appealed from must be, as it hereby is, AFFIRMED. With the costs of this instance to be assessed against the accused-appellant."The challenged CA Resolution denied petitioner's Motion for Reconsideration.
"[T]hat on or about November 4 1998, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a gun, and with intent to kill, wilfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death."
"4. The prosecution presented Lito Santos, Ernita Pantinople, PO2 Mariano Operario, Alicia Pantinople and Dr. Danilo Ledesma as its witnesses from whose testimonies, the following facts were established.
"Lito Santos, a forty-three-year old farmer and resident of Barangay Gatungan, Bunawan District, Davao City, testified that about 6:00 o'clock in the afternoon of November 4, 1998, he saw his neighbor and "kumpare" Artemio Pantinople arrive on board a jeepney from Bunawan, Davao City. Artemio was carrying a truck battery, some corn bran and rice. They talked for a while concerning their livelihood afterwhich, Artemio proceeded to connect the battery to the fluorescent lamps in his store. Artemio's store was located about five (5) meters away from Lito's house.
"After installing the battery to the fluorescent lamps, Artemio sat for a while on a bench located in front of his store. Then, Cecilia Santos, Lito's wife, called him and Artemio for supper. Artemio obliged. Lito, opting to eat later, served Artemio and Cecilia the food. After eating, Artemio returned to the bench and sat on it again together with his tree (3) children, namely: Janice, Saysay and Pitpit.
"Lito was eating supper in their kitchen when he heard a gunshot. From a distance of about ten (10) meters, he also noticed smoke and fire coming from the muzzle of a big gun. Moments later, he saw Artemio clasping his chest and staggering backwards to the direction of his (Lito's) kitchen. Artemio shouted to him, "Tabangi ko Pre, gipusil ko ni kapitan," meaning "Help me, Pre, I was shot by the captain." However, Lito did not approach Artemio right after the shooting incident because Cecilia warned him that he might also be shot.
"Lito did not see the person who shot Artemio because his attention was then focused on Artemio.
"Shortly, Lito saw Ernita Pantinople, the wife of Artemio, coming from her house towards the direction where Artemio was sprawled on the ground. Ernita was hysterical, jumping and shouting, "Kapitan, bakit mo binaril and aking asawa." She also repeatedly cried for help.
"Lito then went out of their house and approached Artemio who was lying dead near a banana trunk more than five (5) meters from his house. Some of their neighbors, namely: Antenero, Loloy Libre and Lapis answered Ernita's call for help and approached them.
"When the shooting incident happened about 7:30 in the evening of November 4, 1998, Lito's house was illumined by a lamp. Their kitchen has no walls. It is an open-type kitchen giving him an unobstructed view of Artemio who was about five (5) meters away from where he was positioned at that time. Although there was a gemilina tree growing in the space in between his house and the store of Artemio, the same did not block his view of Artemio. Likewise, the coconut trees and young banana plants growing at the scene of the crime did not affect his view.
"At the same instance, Ernita was also in their kitchen preparing milk for her baby. Her baby was then lying on the floor of their kitchen. When she was about to put the bottle into the baby's mouth, she suddenly heard the sound of a gunburst followed by a shout, "Help me Pre, I was shot by the captain." She immediately pushed open the window of their kitchen and saw appellant wearing a black jacket and camouflage pants running towards the direction of the back portion of Lito's house. From there, appellant crossed the street and disappeared.
"Ernita saw appellant carrying with him a long firearm which looked like an M-14 rifle. Ernita also sensed that appellant had some companions with him because she heard the crackling sound of the dried leaves around the place. Ernita had a clear view of appellant at that time because their place was well-illumined by the full moon that night and by the two (2) fluorescent lamps in their store which were switched on at the time of the incident.
"Ernita immediately went out of their house and ran towards Artemio. Artemio tried to speak to her but he could not do so because his mouth was full of blood. Upon seeing the pitiful sight of her husband, Ernita shouted several times, "Kapitan, ngano nimo gipatay and akong bana." She also repeatedly called her neighbors for help but only Lito Santos, Eufemio Antenero, Norman Libre and some residents of Poblacion Gatungan responded to her calls and approached them. She noted that no member of the CFO and CAFGU came to help them. Also, no barangay tanod came to offer them to help.
"While waiting for the police, Ernita did not allow Artemio's body to be touched by anybody. After more than two (2) hours, the police arrived, together with a photographer by the name of Fe Mendez of Bunawan District, Davao City who took pictures of the crime scene.
"PO2 Mariano Operario, Investigation Officer of the Investigation Section of the Bunawan Police Station, Philippine National Police, Davao City, testified that about 9:05 in the evening of November 4, 1998, he received a report of an alleged shooting incident at Barangay Gatungan, Bunawan District in Davao City. Together with SPO1 Rodel C. Estrellan and a member of the mobile police patrol on board their mobile car, PO2 Operario proceeded immediately to the crime scene. They reached the crime scene about 10:00 o'clock in the evening of the same date. They found the lifeless body of Artemio sprawled on the ground. Ernita and Lito then approached PO2 Operario and informed him that appellant was the one responsible for the shooting.
"PO2 Operario stayed at the crime scene for about one (1) hour and waited for the funeral vehicle to pick up the body of Artemio. When the funeral hearse arrived, PO2 Operario told the crew to load Artemio's body into the vehicle. Thereafter, he then boarded again their mobile car together with Lito Santos.
"Armed with the information that appellant was the one responsible for the shooting of Artemio, PO2 Operario proceeded to the house of appellant and informed him that he was a suspect in the killing of Artemio. He then invited appellant to go with him to the police station and also to bring along with him his M-14 rifle. Appellant did not say anything. He just got his M-14 rifle and went with the police to the police station where he was detained the whole night of November 4, 1998. Appellant did not also give any statement to anybody about the incident. The following day, appellant was transferred by the police to Tibungco Police Station where he was detained.
"Alicia Pantinople, the 44-year old sister of Artemio, testified that on the night of November 4, 1998, she was at home watching television. She heard a gunshot but did not mind it because she was already used to hearing the sound of guns fired indiscriminately in their place.
"After a few minutes, Junjun, a child and resident of Sitio Centro, Barangay Gatungan, Bunawan District, Davao City came knocking at their door. Junjun informed them that: "Yoyo, Uncle Titing was shot," referring to Artemio.
"Upon hearing the report, Alicia looked for some money thinking that it might be needed for Artemio's hospitalization because she expected Artemio to be still alive. Artemio's two (2) children, namely: Jonel and Genesis who were staying with her hurriedly left. She then ran to the place where her brother was shot and found Artemio's dead body on the ground surrounded by his four (4) children.
"At the Bunawan Police Station, Alicia was informed by the police that appellant was at Tibungco Police Station. She sent her male cousin to proceed to Tibungco Police Station to find out if appellant was indeed in the said place. However, her cousin immediately returned and informed her that appellant was not in Tibungco Police Station. She then went around the Bunawan Police Station and noticed a locked door. When she peeped through the hole of the said door, she saw appellant reclining on a bench about two and a half (2 ½) meters away from the door. Appellant's left leg was on top of the bench while his right leg was on the ground. Appellant was wearing a brown shirt, black jacket and a pair of camouflage pants. He was also wearing brown shoes but he had no socks on his feet.
"At the police station, Alicia confronted appellant: "Nong Listing I know that you can recognize my voice. It is me. Why did you kill my brother? What has he done wrong to you?"
"Appellant did not answer her. Nevertheless, she was sure that appellant was awake because he was tapping the floor with his right foot.
"Dr. Danilo Ledesma, a medico-legal officer of the Davao City Health Department, conducted an autopsy on Artemio's cadaver about 9:30 in the morning of November 5, 1998 at the Rivera Funeral Homes located at Licanan, Lasang. His findings are summarized in his Necropsy Report No. 76:'POSTMORTEM FINDINGS
'Wound, gunshot, ENTRANCE, 0.9 x 0.8 cm. Ovaloid located at the anterior chestwall, rightside, 1.0 cm; from the anterior median line, at the level of the third (3rd) intercoastal space and 131.0 cms. above the right heel, directed backwards, upwards, medially crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum, into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung, forming an irregular EXIT, 1.5 x 1.1 cms. at the posterior chest wall left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left heel.
'Hemopericadium, 300 ml.
'Hemothorax, left, 1,000 ml.
'Stomach, filled with partially digested food particles.
'Other visceral organs, pale.
'CAUSE OF DEATH: Gunshot wound of the chest.Signed by: DANILO P. LEDESMAMedico-Legal Officer IV'
"During the trial, Dr. Ledesma explained that Artemio died of a gunshot wound, 0.9 x 0.8 centimeters in size located about one (1) inch away from the centerline of Artemio's Adam's apple down to his navel and about 1:00 o'clock from his right nipple.
"The trajectory of the bullet passing through Artemio's body indicates that his assailant was in a lower position than Artemio when the gun was fired. Dr. Ledesma also found the wound of Artemio negative of powder burns indicating that the assailant was at a distance of more than twenty-four (24) inches when he fired his gun at Artemio. He did not also find any bullet slug inside the body of Artemio indicating that the bullet went through Artemio's body. Artemio's heart and lungs were lacerated and his stomach contained partially digested food particles indicating that he had just eaten his meal when he was shot.
"In the certificate of death of Artemio, Dr. Ledesma indicated that the cause of his death was a gunshot wound on the chest.
"5. After the defense presented its evidence, the case was submitted for decision."
"9. This is a criminal case for Homicide originally lodged before the Regional Trial Court, Branch 10 of Davao City against herein Petitioner Celestino Marturillas, former Barangay Captain of Gatungan, Bunawan District[,] Davao City and docketed as Criminal Case No. 42,091-98. The criminal charge against Petitioner was the result of a shooting incident in Barangay Gatungan, Bunawan District, Davao City which resulted in the slaying of Artemio Pantinople while the latter was on his way home in the evening of November 4, 1998.
"10. On that same evening at around 8:30 p.m. herein Petitioner former Barangay Captain Celestino Marturillas was roused from his sleep at his house in Barangay Gatungan, Bunawan District, Davao City by his wife since Kagawads Jimmy Balugo and Norman Libre (Barangay Kagawads of Gatungan, Bunawan District, Davao City) wanted to see him. Dazed after just having risen from bed, Petitioner was rubbing his eyes when he met the two Kagawads inside his house. He was informed that a resident of his barangay, Artemio Pantinople, had just been shot. Petitioner at once ordered his Kagawads to assemble the members of the SCAA (Special Civilian Armed [Auxiliary]) so that they could be escorted to the crime scene some 250 meters away. As soon as the SCAA's were contacted, they (Petitioner, Kagawads Libre and Balugo including Wiliam Gabas, Eddie Loyahan and Junior Marturillas - the last three being SCAA members) then proceeded to the crime scene to determine what assistance they could render.
"11. While approaching the store owned by the Pantinople's and not very far from where the deceased lay sprawled, Petitioner was met by Ernita Pantinople (wife of the deceased-Artemio Pantinople) who was very mad and belligerent. She immediately accused Petitioner of having shot her husband instead of Lito Santos who was his enemy. Petitioner was taken aback by the instant accusation against him. He explained that he just came from his house where he was roused by his Kagawads from his sleep. Not being able to talk sense with Ernita Pantinople, Petitioner and his companions backed off to avoid a heated confrontation. Petitioner instead decided to go back to his house along with his companions.
"12. Upon reaching his house, Petitioner instructed Kagawad Jimmy Balugo to contact the Bunawan Police Station and inform them what transpired. Not knowing the radio frequency of the local police, Kagawad Balugo instead radioed officials of nearby Barangay San Isidro requesting them to contact the Bunawan PNP for police assistance since someone was shot in their locality.
"13. Moments later, PO2 Mariano Operario and another police officer arrived at the house of Petitioner and when confronted by the latter, he was informed by PO2 Operario that he was the principal suspect in the slaying of Artemio Pantinople. Upon their invitation, Petitioner immediately went with the said police officers for questioning at the Bunawan Police Station. He also took with him his government-issued M-14 Rifle and one magazine of live M-14 ammunition which Petitioner turned over for safe keeping with the Bunawan PNP. The police blotter showed that Petitioner surrendered his M-14 rifle with live ammunition to SPO1 Estrellan and PO3 Sendrijas of the Bunawan PNP at around 10:45 p.m. of November 4, 1998.
"14. When the shooting incident was first recorded in the Daily Record of Events of the Bunawan PNP it was indicated therein that deceased may have been shot by unidentified armed men viz:'Entry No. Date Time Incident/Events"15. The extract from the police blotter prepared by SPO2 Dario B. Undo dated November 9, 1998 already had a little modification indicating therein that deceased was shot by an unidentified armed man and the following entry was made.
2289 110498 2105H SHOOTING INCIDENT-
'One Dominador Lopez 43 years old, married, farmer and a resident of Puro[k] 5, Barangay Gatungan, Davao City appeared at this Precinct and reported that shortly before this writing, one ARTEMIO PANTINOPLE, former barangay kagawad of Barangay Gatungan was allegedly shot to death by an unidentified armed men at the aforementioned Barangay. x x x.''2105H: Shooting Incident: One Dominador Lopez, 43 years old, married, farmer and a resident of Purok 5, Barangay Gatungan Bunawan District, Davao City appeared at this Police Precinct and reported that prior to these writing, one Artemio Pantinople, former Barangay Kagawad of Barangay Gatungan was allegedly shot to death by unidentified armed man at the aforementioned barangay. x x x.'"16. On November 5, 1998 at around 7:15 a.m. PO2 Mariano Operario indorsed with the Bunawan PNP an empty shell fired from a carbine rifle which was recovered by the said police officer from the crime scene in the night of the incident. Owing to his pre-occupation in organizing and preparing the affidavits of the Complainant and her witnesses the previous evening, he was only able to indorse the same the following morning. At the same time, P/Chief Insp. Julito M. Diray, Station Commander of the Bunawan PNP made a written request addressed to the District Commander of the PNP Crime Laboratory requesting that a paraffin test be conducted on Petitioner and that a ballistics examination be made on the M-14 rifle which he surrendered to Bunawan PNP.
"17. At around 9:30 a.m. of November 5, 1998, Dr. Danilo P. Ledesma, M.D., Medico-Legal Officer for Davao City conducted an autopsy on the cadaver of deceased and made the following Post-Mortem Findings contained in Necropsy Report No. 76 dated November 6, 1998, viz:'Pallor, marked, generalized"18. After the fatal shooting of deceased, Celestino Marturillas was subjected to paraffin testing by the PNP Crime Laboratory in Davao City at 10:30 a.m. November 5, 1998. The next day, November 6, 1998, the PNP Crime Laboratory released Physical Sciences Report No. C-074-98 regarding the paraffin test results which found Petitioner NEGATIVE for gunpowder nitrates based on the following findings of the PNP Crime Laboratory:
'Body in rigor mortis
'Wound, gunshot, ENTRANCE, 0.9-0.8 cm. ovaloid located at the anterior chest wall, right side, .0 cm. from the anterior median line, at the level of the third (3rd) intercostal space and 131.0 cms. above the right neck, directed backwards, upwards, medially, crossing the midline from the right to left, involving the soft tissues, perforating the body of the sternum into the pericardial cavity, perforating the heart into the left thoracic cavity, perforating the upper lobe of the left lung forming an irregular EXIT, 1.5x1.1 cms. at the posterior chest wall, left side, 13.0 cms. from the posterior median line and 139.0 cms. above the left neck.
'Hemopericadium, 300 ml.
'Hemothorax, left 1,000 ml.
'Stomach filled with partially digested food particles.
'Other visceral organs, pale
'CAUSE OF DEATH: Gunshot wound of the chest.'
'FINDINGS:'Qualitative examination conducted on the above-mentioned specimen gave NEGATIVE result to the test for the presence of gunpowder nitrates. x x x"19. After preparing all the affidavits of Ernita Pantinople and her witnesses PO2 Mariano R. Operario Jr., the police officer as[s]igned to investigate the shooting of the deceased, prepared and transmitted, on November 5, 1998, a Complaint to the City Prosecution Office recommending that Petitioner be indicted for Murder, attaching therewith the Sworn Affidavits of Ernita O. Pantinople (Complainant), Lito D. Santos (witness) and the Sworn Joint Affidavit of SPO1 Rodel Estrellan and PO2 Mariano R. Operario Jr. of the PNP.
'Both hands of Celestino Marturillas do not contain gunpowder nitrates[.]'
"20. The following is the Affidavit-Complaint of Ernita Pantinople as well as the supporting affidavits of her witnesses all of which are quoted in full hereunder:'Ernita Pantinople's Affidavit-Complaint dated November 5, 1998:"21. Based on the Affidavits executed by Ernita Pantinople and Lito Santos, then 2nd Asst. City Prosecutor Raul B. Bendigo issued a Resolution on November 5, 1998 finding sufficient evidence to indict Appellant for the crime of Homicide and not Murder as alleged in Private Complainant's Affidavit Complaint. The Information states:'That last November 4, 1998 at about 7:30 in the evening, I was attending and caring my baby boy at that time to let him sleep and that moment I heard first one gun shot burst after then somebody shouting seeking for help in Visayan words 'tabangi ko Pre gipusil ko ni Kapitan' I estimated a distance to more or less ten (10) meters away from my house;'Witness-Affidavit of Lito Santos dated November 5, 1998 reads:
'That I immediately peep at the windows, wherein I very saw a person of Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City, wearing black jacket and camouflage pants carrying his M-14 rifle running to the direction to the left side portion of the house of Lito Santos who was my neighbor respectively;
'That I hurriedly go down from my house and proceeded to the victims body, wherein when I came nearer I got surprised for the victim was my beloved husband;
'That I was always shouting in visayan words 'kapitan nganong imo mang gipatay and akong bana';
'That I let my husband body still at that placed until the police officers will arrived and investigate the incident;
'That I know personally Brgy. Capt. Celestino Marturillas for he is my nearby neighbor at that placed;
'That I am executing this affidavit to apprise the authorities concern of the truthfulness of the foregoing and my desire to file necessary charges against Celestino Marturillas.''I, LITO D. SANTOS, 43 yrs. old, married, farmer, a resident of Purok 5, Brgy. Gatungan, Bunawan District, Davao City after having been duly sworn to in accordance with law do hereby depose and say:
'That last November 4, 1998 at about 7:30 in the evening I was taking my dinner at the kitchen of my house and after finished eating I stood up then got a glass of water and at that time I heard one gun shot burst estimated to more or less ten (10) meters from my possession then followed somebody shouting seeking for help in Visayan words 'tabangi ko pre gipusil ko ni Kapitan';
'That I really saw the victim moving backward to more or less five (5) meters away from where he was shot then and there the victim slumped at the grassy area;
'That I immediately go out from my house and proceeded to the victims body, wherein, when I came nearer I found and identified the victim one Artemio Pantinople who was my nearby neighbor sprawled on his own blood at the grassy area;
'That no other person named by the victim other than Brgy. Capt. Celestino Marturillas of Brgy. Gatungan, Bunawan District, Davao City;
'That I am executing this affidavit to apprised the authorities concern of the true facts and circumstances that surrounds the incident.'
'Above-mentioned Accused, armed with a gun, and with intent to kill, willfully, unlawfully and feloniously shot one Artemio Pantinople, thereby inflicting fatal wound upon the latter which caused his death.
'CONTRARY TO LAW.'
x x x x x x x x x
"23. The theory of the Defense was anchored on the testimony of the following individuals:'23.1 Jimmy Balugo, was one of the Barangay Kagawads who went to the house of Petitioner after receiving a radio message from Brgy. Kagawad Glenda Lascuña that a shooting incident took place in their barangay. He also testified that together with Kagawad Norberto Libre, he proceeded to the house of Petitioner to inform him of the shooting incident involving a certain Artemio 'Titing' Pantinople. After informing Petitioner about what happened, the latter instructed him and Norberto Libre to gather the SCAA's and to accompany them to the crime scene. He also narrated to the court that Petitioner and their group were not able to render any assistance at the crime scene since the widow and the relatives of deceased were already belligerent. As a result of which, the group of Petitioner including himself, went back to the former's house where he asked Petitioner if it would be alright to contact the police and request for assistance. He claimed that he was able to contact the Bunawan PNP with the help of the Barangay Police of Barangay San Isidro.
'23.2) Norberto Libre testified that in the evening of November 4, 1998, he heard a gunburst which resembled a firecracker and after a few minutes Barangay Kagawad Jimmy Balugo went to his house and informed him that their neighbor Titing Pantinople was shot. Kagawad Balugo requested him to accompany the former to go to the house of then Barangay Captain Celestino Marturillas; that he and Kagawad Balugo proceeded to the house of Petitioner and shouted to awaken the latter; that Barangay Captain Marturillas went out rubbing his eyes awakened from his sleep and was informed of the killing of Artemio Pantinople; that Petitioner immediately instructed them to fetch the SCAA and thereafter their group went to the crime scene.
'23.3) Ronito Bedero testified that he was in his house on the night Artemio Pantinop[l]e was shot. The material point raised by this witness in his testimony was the fact that he saw an unidentified armed man flee from the crime scene who later joined two other armed men near a nangka tree not far from where deceased was shot. All three later fled on foot towards the direction of the Purok Center in Barangay Gatungan. This witness noticed that one of the three men was armed with a rifle but could not make out their identities since the area where the three men converged was a very dark place. After the three men disappeared, he saw from the opposite direction Petitioner, Barangay Kagawad Jimmy Balugo and three (3) SCAA members going to the scene of the crime but they did not reach the crime scene. A little later, he saw the group of Petitioner return to where they came from.
'23.4) Police C/Insp. Noemi Austero, Forensic Chemist of the PNP Crime Laboratory, testified that she conducted a paraffin test on both hands of Petitioner on November 5, 1999 at around 10:30 a.m. She also testified that Petitioner tested NEGATIVE for gunpowder nitrates indicating that he never fired a weapon at any time between 7:30 p.m. of November 4, 1999 until the next day, November 5, 1999. She also testified that as a matter of procedure at the PNP Crime Laboratory, they do not conduct paraffin testing on a crime suspect seventy two (72) hours after an alleged shooting incident. She also testified that based on her experience she is not aware of any chemical that could extract gunpowder nitrates from the hands of a person who had just fired his weapon.
'23.5) Dominador Lapiz testified that he lived on the land of the victim, Artemio Pantinople for ten (10) years. He was one of the first persons who went to the crime scene where he personally saw the body of deceased lying at a very dark portion some distance from the victim's house and that those with him at that time even had to light the place with a lamp so that they could clearly see the deceased. He also testified that there were many coconut and other trees and bananas in the crime scene. He also testified that the house of Lito Santos was only about four (4) meters from the crime scene, while the house of victim-Artemio Pantinople was about FIFTY (50) meters away. He testified that there was no lighted fluorescent at the store of deceased at the time of the shooting. He was also the one who informed Kagawad Glenda Lascuna about the shooting of Artemio Pantinople. His testimony also revealed that when the responding policemen arrived, Lito Santos immediately approached the policemen, volunteered himself as a witness and even declared that he would testify that it was Petitioner who shot Artemio Pantinople.
'On cross-examination, this witness declared that the crime scene was very dark and one cannot see the body of the victim without light. On cross-examination, this witness also testified that Lito Santos approached the service vehicle of the responding policemen and volunteered to be a witness that Petitioner was the assailant of the victim, Artemio Pantinople. This witness further testified that immediately after he went to the crime scene, the widow of the victim and the children were merely shouting and crying and it was only after the policemen arrived that the widow uttered in a loud voice, 'Kapitan nganong gipatay mo and akong bana?'
'23.6) Celestino Marturillas, former Barangay Captain of Barangay Gatungan, Bunawan District, Davao City testified that he learned of Pantinople's killing two hours later through information personally relayed to him by Kagawads Jimmy Balugo and Norberto Libre. He intimated to the Court that he did try to extend some assistance to the family of the deceased but was prevented from so doing since the wife of deceased herself and her relatives were already hostile with him when he was about to approach the crime scene. He also testified that he voluntarily went with the police officers who arrested him at his residence on the same evening after the victim was shot. He also turned over to police custody the M-14 rifle issued to him and voluntarily submitted himself to paraffin testing a few hours after he was taken in for questioning by the Bunawan PNP. Petitioner, during the trial consistently maintained that he is innocent of the charge against him.'"
In sum, petitioner raises two main issues: 1) whether the prosecution's evidence is credible; and 2) whether it is sufficient to convict him of homicide. Under the first main issue, he questions the positive identification made by the prosecution witnesses; the alleged inconsistencies between their Affidavits and court testimonies; and the plausibility of the allegation that the victim had uttered, "Tabangi ko p're, gipusil ko ni kapitan" ("Help me p're, I was shot by the captain"), which was considered by the two lower courts either as his dying declaration or as part of res gestae."I
The Court of Appeals committed a reversible error when it gave credence to the claim of the solicitor general that the prosecution's witnesses positively identified petitioner as the alleged triggerman"II
The Court of Appeals was in serious error when it affirmed the trial court's blunder in literally passing the blame on petitioner for the lapses in the investigation conducted by the police thereby shifting on him the burden of proving his innocence"III
The Court of Appeals committed a serious and palpable error when it failed to consider that the deceased was cut off by death before he could convey a complete or sensible communication to whoever heard such declaration assuming there was any"IV
Petit[i]oner's alibi assumed significance considering that evidence and testimonies of the prosecution's witnesses arrayed against petitioner failed to prove that he was responsible for the commission of the crime."
"Ernita's testimony that she saw [petitioner] at the crime scene is credible because the spot where Artemio was shot was only 30 meters away from her house. Undoubtedly, Ernita is familiar with [petitioner], who is her neighbor, and a long-time barangay captain of Barangay Gatungan, Bunawan District, Davao City when the incident took place. Ernita was also able to see his face while he was running away from the crime scene. The identification of a person can be established through familiarity with one's physical features. Once a person has gained familiarity with one another, identification becomes quite an easy task even from a considerable distance. Judicial notice can also be taken of the fact that people in rural communities generally know each other both by face and name, and can be expected to know each other's distinct and particular features and characteristics."This holding confirms the findings of fact of the RTC. Settled is the rule that on questions of the credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect. It was the trial court that had the opportunity to observe the manner in which the witnesses had testified; as well as their furtive glances, calmness, sighs, and scant or full realization of their oaths. It had the better opportunity to observe them firsthand; and to note their demeanor, conduct and attitude under grueling examination.
"x x x Ernita's recognition of the assailant was made possible by the lighted two fluorescent lamps in their store and by the full moon. x x x. In corroboration, Lito testified that the place where the shooting occurred was bright.This Court has consistently held that --given the proper conditions -- the illumination produced by a kerosene lamp, a flashlight, a wick lamp, moonlight, or starlight is considered sufficient to allow the identification of persons. In this case, the full moon and the light coming from two fluorescent lamps of a nearby store were sufficient to illumine the place where petitioner was; and to enable the eyewitness to identify him as the person who was present at the crime scene. Settled is the rule that when conditions of visibility are favorable and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted.
"The trees and plants growing in between Ernita's house and the place where Artemio was shot to death did not impede her view of the assailant. To be sure, the prosecution presented photographs of the scene of the crime and its immediate vicinities. These photographs gave a clear picture of the place where Artemio was shot. Admittedly, there are some trees and plants growing in between the place where the house of Ernita was located and the spot where Artemio was shot. Notably, however, there is only one gemilina tree, some coconut trees and young banana plants growing in the place where Artemio was shot. The trees and banana plants have slender trunks which could not have posed an obstacle to Ernita's view of the crime scene from the kitchen window of her house especially so that she was in an elevated position."
"x x x. They referred only to that point wherein Ernita x x x ascertained the identity of Artemio as the victim. They did not relate to Ernita's identification of [petitioner] as the person running away from the crime scene immediately after she heard a gunshot."Statements Uttered
"x x x. The natural reaction of a person who hears a loud or startling command is to turn towards the speaker. Moreover, witnessing a crime is an unusual experience that elicits different reactions from witnesses, for which no clear-cut standard of behavior can be prescribed. Lito's reaction is not unnatural. He was more concerned about Artemio's condition than the need to ascertain the identity of Artemio's assailant."It was to be expected that, after seeing the victim stagger and hearing the cry for help, Santos would shift his attention to the person who had uttered the plea quoted earlier. A shift in his focus of attention would sufficiently explain why Santos was not able to see the assailant. Petitioner then accuses this witness of harboring "a deep-seated grudge," which would explain why the latter allegedly fabricated a serious accusation.
"x x x. Thus, as between the positive and categorical declarations of the prosecution witnesses and the mere opinion of the medical doctor, the former must necessarily prevail.Dying Declaration
"Moreover, it must be stressed that the post-mortem examination of the cadaver of Artemio was conducted by Dr. Ledesma only about 9:30 in the morning of November 5, 1998 or the day following the fatal shooting of Artemio. Evidently, several hours had elapsed prior to the examination. Thus, Dr. Ledesma could not have determined Artemio's physical condition a few seconds after the man was shot."
"The declaration of a dying person, made under the consciousness of impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death."Generally, witnesses can testify only to those facts derived from their own perception. A recognized exception, though, is a report in open court of a dying person's declaration made under the consciousness of an impending death that is the subject of inquiry in the case.
"Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae."Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.
"SEC. 4. Circumstantial evidence, when sufficient. --Circumstantial evidence is sufficient for conviction if:Paraffin Test(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt."
"[Corpus delicti] is the fact of the commission of the crime that may be proved by the testimony of eyewitnesses. In its legal sense, corpus delicti does not necessarily refer to the body of the person murdered, to the firearms in the crime of homicide with the use of unlicensed firearms, to the ransom money in the crime of kidnapping for ransom, or x x x to the seized contraband cigarettes."To undermine the case of the prosecution against him, petitioner depends heavily on its failure to present the gun used in the shooting and on the negative paraffin test result. These pieces of evidence alone, according to him, should exculpate him from the crime. His reliance on them is definitely misplaced, however. In a similar case, this Court has ruled as follows:
"Petitioner likewise harps on the prosecution's failure to present the records from the Firearms and Explosives Department of the Philippine National Police at Camp Crame of the .45 caliber Remington pistol owned by petitioner for comparison with the specimen found at the crime scene with the hope that it would exculpate him from the trouble he is in. Unfortunately for petitioner, we have previously held that "the choice of what evidence to present, or who should testify as a witness is within the discretionary power of the prosecutor and definitely not of the courts to dictate."Finally, as regards petitioner's alibi, we need not belabor the point. It was easily, and correctly, dismissed by the CA thus:
"Anent the failure of the investigators to conduct a paraffin test on petitioner, this Court has time and again held that such failure is not fatal to the case of the prosecution as scientific experts agree that the paraffin test is extremely unreliable and it is not conclusive as to an accused's complicity in the crime committed."
"[Petitioner's] alibi is utterly untenable. For alibi to prosper, it must be shown that it was physically impossible for the accused to have been at the scene of the crime at the time of its commission. Here, the locus criminis was only several meters away from [petitioner's] home. In any event, this defense cannot be given credence in the face of the credible and positive identification made by Ernita."
"1) when the factual findings of the Court of Appeals and the trial court are contradictory; Petitioner's Memorandum, p. 25; rollo, p. 192.
2) when the findings are grounded entirely on speculation, surmises, or conjectures;
3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible;
4) when there is grave abuse of discretion in the appreciation of facts;
5) when the appellate court, in making its findings, goes beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee;
6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;
7) when the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion;
8) when the findings of fact are themselves conflicting;
9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and
10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record." (Fuentes v. CA, 268 SCRA 703, February 26, 1997; Geronimo v. CA, 224 SCRA 494, July 5, 1993; Angelo v. CA, 210 SCRA 402, June 26, 1992).