463 Phil. 51
CALLEJO, SR., J.:
That on the 5th day of November, 1993 at 9:30 o'clock in the evening, more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, by means of treachery, evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Cañon with the use of unlicensed revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous death of the said victim.Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellant's younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Cañon, Jr., The Cañons and the appellant were neighbors. The matter was brought to the attention of the barangay captain who conducted an investigation. It turned out that Emmanuel Cañon, Jr. was not the culprit. The barangay captain considered the matter closed. The appellant, however, was bent on confronting Emmanuel Cañon, Jr.
CONTRARY TO LAW.[2]
Examination in Detail:Dr. Charity Patalinghug and the victim's daughter Loreta C. Claro signed Emmanuel's Certificate of Death. [4] The appellant surrendered to the police authorities but failed to surrender the firearm he used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results:
On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1 cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3 cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying frontal bone was fractured and depressed. The underlying meninges of the brain as well as the frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry wound. The wound was found to be circular in shape. The exit wound was found at the left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of the left side of the forehead. The connection from the wound of entry to the exit wound measured 8 cms. The parietal bone was fractured and was depressed and the parietal part of the brain and meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from this wound.
Possible cause of death:
- Gunshot wound at the head (left side) with injury to brain and meninges
- Hypovolemic shock secondary to loss of blood (Severe loss of blood)
(Sgd.) Ivar G. Arellano
MUN. Health Officer[3]
FINDINGS:Norberta also testified on the expenses incurred by her family due to her husband's death. No documentary evidence was, however, offered to support the same. She declared that she felt sad and lonely as a result of her husband's death....
- POSITIVE for the presence of gunpowder residue on his left hand cast.
- NEGATIVE for the presence of gunpowder residue on his right hand cast.[5]
WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.On appeal, the appellant assails the decision of the trial court contending that:
However, accused is given full credit of his preventive imprisonment.
SO ORDERED.[8]
The appellant asserts that he was merely performing a lawful act of defending himself when he grabbed the victim's hand which held the gun. The gun accidentally fired and the bullet hit the victim's forehead. The accident was not the appellant's fault. The appellant asserts that when he wrestled with the victim for the possession of the gun, he was merely defending himself. He contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he had wanted to kill the victim, he could have easily done so when he met the latter for the first time that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally liable for the death of the victim.[10] In the alternative, the appellant asserts that he should be convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying circumstance of treachery is wanting. He and the victim had a heated exchange of words before they grappled for the possession of the gun. Such heated discussion had already forewarned the victim and placed him on guard; thus, treachery cannot be legally considered.I
First Assignment of Error
THE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.II
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT "B" OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.III
Third Assignment of Error
THE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER.IV
Fourth Assignment of Error
THE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.[9]
ART. 11. Justifying circumstances. –The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:
...
4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another provided that the following requisites are present:First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.
ARTICULO 8.Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish Penal Code. The phrase "an injury" does not appear in the first paragraph in the Spanish Penal Code. Neither does the word "injury" appear in the second subparagraph of the Spanish Penal Code.
7. El que para evitar un mal ejecuta un hecho que produzca dañ en la propiedad ajena, siempre que concurran las circumstancias siguientes:
Primera. Realidad del mal que se trata de evitar. Segunda. Quesea mayor que el causado para evitarlo. Tercera. Que no haya otro medio practicable y menos perjudicial para impedirlo.
Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a otra personas .[11]The phrase "state of necessity" is of German origin. Countries which have embraced the classical theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical rights (bienes juridicos) such as right to life, honor, the integrity of one's body, and property (la vida, la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to another.[12]
Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos. Por actos maliciosos, intencionales, encaminados directamente a causarnos daño; por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.[15]The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution because if such evidence is weak but the accused fails to prove his defense, the evidence of the prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the parties and of the probative weight thereof as well as its conclusions based on its own findings are accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored, misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will change the outcome of the case. We have meticulously reviewed the records and find no basis to deviate from the findings of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of a deliberate and malicious act of shooting the victim at close range on the forehead.
Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the victim. The appellant's claim that he placed the gun on the dining table before entering his bedroom to change his clothes is incredible. There is no evidence that the appellant informed the police authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun into the sea. The appellant never presented the police officer to whom he confessed that he killed the victim in a state of necessity.
Q Now, you said that when your husband was about to go out again in order to see his trisicad and as he opened the door he saw Jesus Retubado near the door. What happened after that?A He asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.Q Now, as your husband was asking this question to the accused Jesus Retubado what was the distance to your husband at the time?A Just very near to him.Q And you to the accused at that very moment what was more or less your distance?A About an armslength.Q When your husband asked Jesus Retubado why the latter chased him while your husband was driving his trisicad what was the answer of Jesus Retubado, if any?A My husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado answered that it is not you who has a grudge to me but it is your son.Q When Jesus Retubado uttered that statement what transpired after that?A He immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Cañon.Q By the way considering that you were just near to both your husband and the accused where did that firearm that you said was pointed by the accused to your husband come (sic) from?A While the accused was standing in front of our door his hands were placed inside his T-shirt covered by his T-shirt.Atty. Pepito: We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it come from?COURT: Let the answer stay in the record but let the witness answer again.A From the hands of accused Jessie.Fiscal Pansoy: Q Now, just a while ago you were making a motion using your hand placed inside your T-shirt. Now, when you saw the firearm for the first time where did you saw (sic) the firearm for the first time where did the firearm come from as you saw it from the hands of the accused?Atty. Pepito: Already answered. It came from the hands of the accused.Fiscal Pansoy: I will reform.Q Before you saw the firearm in the hands of the accused where did the firearm come from?Atty. Pepito: She is incompetent. We object.COURT: Reform the question.Fiscal Pansoy: Q Now, Mrs. Witness, before this question was asked to you as to where the firearm came from you were making a motion by placing your hands inside your shirt when you were only asked as to where the firearm came from?A That was what the position of the accused when he was standing in front of our door and I do not know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.Q Now, when the accused pointed the firearm to your husband and fired the same more or less what was the distance between the accused and your husband at the very precise time when the firing was made?A It was just very near because his hand did not bend. (Witness demonstrating by pointing to her forehead).Q Now, more or less, describe to the Court the approximate distance between the firearm that was pointed to your husband and the forehead of your husband at the time when the firing was done?A It touched the forehead of my husband.Q That was the very time that you heard the gunburst?A Yes.Q When the accused fired the firearm that was carried by him, what happened to your husband?A My husband fell down backward to the ground inside the house.Q By the way, what was the flooring of your house where your husband fell backward to the ground?A Cemented.Q By the way considering that you were just very near to where the incident occurred can you describe the length of the firearm that was used by the accused in firing your husband?A It was a short firearm about 6 inches.Q Now, as your husband fell down to the floor where did the accused proceed and what did the accused do?A He was just casually walking away as if nothing had happened.Q Now, what did you do to your husband, if any, after he fell down to the floor?A I have done nothing because I was somewhat shocked. I could not move because I was shocked.[16]