585 Phil. 673
NACHURA, J.:
That at about 8:00 o'clock in the evening on September 24, 1998 in Bacong, San Luis, Aurora and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, unlawfully, feloniously and willfully attack, assault and use personal violence upon Mario Mercado by shooting him with a short firearm as a result of which the latter sustained a gunshot wound: POE 1 cm., (R) public area, POX 1", lacerated stellate (L) gluteus thereby performing all the acts of execution which would produce crime of Homicide were it not for a timely and effective medical attendance which prevented his death.Petitioner voluntarily surrendered and posted the corresponding bail bond for his provisional liberty in the amount of P24,000.00. Thus, the RTC ordered that the warrant of arrest issued against petitioner be recalled.[5] Upon arraignment on January 29, 1999, petitioner pleaded not guilty to the offense charged.[6] Thus, trial on the merits ensued. In the course of the trial, two varying versions arose. Said versions as found by the CA are culled as follows:
CONTRARY TO LAW.
There are two versions of what had transpired on September 24, 1998, at about 8:00 o'clock in the evening, at Bacong, San Luis, Aurora, particularly in front of the house of Reynaldo Novicio, where the latter's grandchild was having a birthday celebration.As a result of this incident, per medical findings of one Dr. Roberto Correa, (Dr. Correa), Medical Officer IV of the Aurora Memorial Hospital (Hospital), Mario sustained a gunshot wound, the point of entry of which was located in the right pubic area (lower abdomen), measuring one (1) inch in size and the point of exit was located at the left gluteus (buttocks), measuring one (1) inch in size and stellated in shape.[19] Dr. Correa testified that it is possible that the wound was fatal in nature. Thus, due to the nature of the injury sustained and the possibility of hitting a vital organ, the doctors decided that Mario be transferred to the Dr. Paulino J. Garcia Memorial Research and Medical Center (Center) in Cabanatuan City.[20]
According to private complainant Mario F. Mercado, on that day, time and place, he was at the party[,] drinking with Edmund Acosta, Alipio Leander, Jr., Reynaldo Novicio, Aniano Paquia, Demetrio Valenzuela and a certain Andy[,] when accused-appellant Arellano Novicio arrived; as the accused-appellant sat with them, he (Arellano) drew a gun from his waist and sat on it after a while, the accused-appellant pointed to him (Mario) saying "Huwag kang tatayo Boy"; when he (Mario) was about to stand the accused-appellant shot him; he (Mario) ran to the house of Reynaldo Novicio to hide in a room but Arnold Novicio, the son of the accused-appellant, forcibly opened it saying "Ano-ano Boy, tapusin na kita" while aiming a short gun at him; Shelly Novicio[-]Iporac, who was inside the room, shouted "Papa, may tama si Kuya Mar" so Arnold left him; then, he (Mario) went out of his hiding place and was later brought to the hospital for treatment,[7] the accused-appellant had a continuing grudge against him because in the evening of July 23, 1998,[8] the former also pointed a gun at him.[9] The private complainant's story is corroborated by his wife, Maricris Mercado[10] and his father-in-law Demetrio Valenzuela.[11]
On the part of accused-appellant Arellano Novicio, he claims that when he arrived on that day, time and place via a motorcycle driven by Walfredo Cruz, they were invited to drink with Demetrio Valenzuela, Aniano Paquia, Edmund Acosta, his brother-in-law Andy, his brother Reynaldo Novicio and private complainant Mario Mercado, who were already noisy as there were empty bottles of gin scattered around; before he (Arellano) could sit, the private complainant told him "O, dumating na pala ang bata ni Governor," which statement he ignored because it was obvious that the latter was already drunk; as he (Arellano) conversed with the group, the private complainant told him "Paano ngayon Sec., amin na ang munisipyo," but he pretended not to hear it; it seemed that the private complainant was not satisfied since he continued riling him to the extent of even telling him to prepare because he would be axed (sibakin) from the government service; when he (Arellano) could no longer endure the fabrications and lies being told by the private complainant, he told him to stop because no one would believe him; the private complainant, resenting what he (Arellano) had told him, suddenly stood and drew a .38 caliber revolver from his waist and pointed it at him; immediately, he (Arellano) held the hand of the private complainant and tried to get the gun from the latter; since he (Arellano) could not get hold of the gun, he did his best to change the direction to which the same was pointing, as a result of which they grappled with each other until they fell to the ground, causing the gun to go off and finally fall to the ground; at that moment, his (Arellano) brother Reynaldo pulled him and told him to run because the private complainant was in the act of picking up the gun so he ran away as fast as he could; for fear that the private complainant was still looking for him, he (Arellano) went to the house of Dading Serrano and returned home only the following morning when he was informed by his brother Reynaldo that the private complainant was a wounded when the gun went off while they were grappling for its possession; he (Arellano) never had the intention of killing nor injuring the private complainant as shown by the circumstance that he could have shot the private complainant in a vital part of his body as he was very near him.[12] The accused-appellant's version is corroborated by Reynaldo Novicio,[13] Edmund Acosta,[14] Walfredo Cruz,[15] Arnold Novicio[16] and Arnel Pena.[17] In addition, they allege that after the accused-appellant ran away, they saw the private complainant handing the gun to his father-in-law Demetrio Valenzuela. Arnold Novicio also denied pointing a gun at the complainant.[18]
WHEREFORE, premises considered, the Court finds accused Arellano Novicio GUILTY beyond reasonable doubt of the crime of frustrated homicide and considering the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset the same and applying the Indeterminate Sentence Law, hereby sentences him to suffer an indeterminate penalty ranging from four (4) years, two (2) months and one (1) day of prision correccional as minimum up to eight (8) years of prision mayor as maximum and to pay the costs.Aggrieved, petitioner appealed the RTC Decision to the CA.[21]
The Court reserves to Mario Mercado the right to institute a separate civil action for the recovery of the civil liability of the accused.
SO ORDERED.
Petitioner argued that: based on the testimonies of the petitioner and his witnesses, it is clear that petitioner merely acted in self-defense; Mario was the aggressor because he drew his gun and aimed it at petitioner; and the CA manifestly overlooked and failed to perceive such fact. Moreover, petitioner claimed that: petitioner did not act with intent to kill since Mario sustained a single gunshot wound which required only a few days of hospital confinement; the testimony of Dr. Correa gives rise to a reasonable doubt as to the serious nature of the said wound as Dr. Correa stated that it was possible that the wound was fatal in nature; Dr. Correa's medical findings do not justify petitioner's conviction for Frustrated Homicide as it is required that the assailant must have performed all acts of execution to effectuate the intent to kill. Verily, such intent must be proved beyond reasonable doubt. Thus, where intent to kill was not sufficiently established, the accused must be convicted of a less serious offense.[24] Furthermore, petitioner's defense that he did not own the said gun must be given credence by this Court as it was corroborated by other competent witnesses that before Mario boarded the tricycle, he handed the said gun to Demetrio. Lastly, petitioner submitted that there is a question of law involved in this case as the Court is asked to resolve the doubts or differences as to what the law is on certain state of facts, hence, the instant Petition under Rule 45 is in order.[25]
- THE HONORABLE COURT A QUO ERRED IN RULING OUT THAT THE APPELLANT-PETITIONER ACTED IN SELF-DEFENSE; [AND]
- THE HONORABLE COURT A QUO ERRED IN RULING THAT THE APPELLANT-PETITIONER ACTED WITH INTENT TO KILL.
An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.It is petitioner's postulation that the lone gunshot wound of Mario does not establish intent to kill. However, the number of wounds inflicted is not the sole consideration in proving intent to kill. In Adame v. Hon. Court of Appeals,[31] a single gunshot wound was inflicted on the victim but this Court convicted the accused therein of frustrated homicide. Just like in Adame, it is worth stressing that petitioner used a gun in this case, and, if not for Mario's act of shoving the table at him, petitioner could have fired a second shot. Furthermore, the nature and location of the wound should also be considered. Dr. Correa's positive testimony was that the wound sustained by Mario could cause death if left untreated. In fact, the first hospital to which Mario was brought could not fully cater to the medical treatment required, and Mario had to be transferred to the Center. This Court has repeatedly held that if the victim's wound would normally cause death, then the last act necessary to produce homicide would have been performed and death would have resulted were it not for the timely medical attention given to the victim.[32]
In People v. Delim [444 Phil. 430, 450 (2003)], the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.