472 Phil. 749
AUSTRIA-MARTINEZ, J.:
IN VIEW OF THE FOREGOING, judgment is hereby rendered finding accused OSCAR ALCANZADO y ORQUEZA GUILTY beyond reasonable doubt of MURDER, with the qualifying circumstance of treachery, and the Court hereby sentences him to suffer the penalty of Reclusion Perpetua and to pay the heirs of the unidentified victim the sum of P50,000.00 as moral damages.However, a careful examination of the records reveals that the assailed decision will have to be set aside and the records remanded back to the RTC for reception of evidence for the defense.
SO ORDERED.
Makati City, Metro Manila, April 5, 1999.[2]
SEC. 15. Demurrer to evidence. – After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence: (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.Contrary to the RTC’s assertion in its decision that the demurrer to evidence was denied,[8] the records of the case do not reveal that there was any prior order denying appellant’s demurrer to evidence before the rendition of the assailed judgment. Evidently, the trial court violated the aforequoted provisions of Section 15, Rule 119. Appellant had filed a motion for leave to file a demurrer to evidence which was granted by the RTC and therefore upon denial of his demurrer, if indeed it was denied, the trial court should have given appellant the opportunity to present his evidence. Equally astonishing is the fact that appellant’s counsel did not raise said irregularity as an issue in the RTC or in this Court. In effect, appellant has not been accorded due process.
If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused filed such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
In brief, the evidence for the prosecution show that on the early morning of June 17, 1998, the Barangay Tanods of Bel-Air, while on duty, which is adjacent to TGIF American Bar, heard two (2) shots; when they investigated they found a dead body of the victim with two (2) gunshot wounds inside the storeroom of TGIF being guarded by the accused. The accused, who was the security guard of the TGIF, surrendered his service firearm (Exhibit “D”) to policeman Bagon which was found to have spent two (2) spent shells. The ballistic report states that the two (2) spent shells were fired from the gun surrendered by the accused to policeman Bagon.There was no eye-witness to the shooting incident. The RTC relied principally on the admission of appellant to the police officer that he shot the unknown victim when he surrendered his service firearm.
The accused opted to file demurrer to evidence which was denied by the Court, instead of testifying and could have explained what really happened and why he surrendered his service firearm.
The Court finds the presence of a qualifying circumstance of treachery, when the accused fired at the victim one on his shoulder and another at his head in close range (TSN dated October 13, 1998, p. 36).[11]
Section 12 (1) and (3), Article III of the 1987 Constitution provides:The rights of the accused as provided therein may be invoked only when a person is under “custodial investigation” or is “in custody investigation”[13] which has “been defined as the “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way” [People vs. Caguioa, G.R. No. L-38975, January 17, 1980, 95 SCRA 2, 9 citing Miranda v. Arizona, 384 U.S. 436].[14]
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. The rights cannot be waived except in writing and in the presence of counsel.
. . .
(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him.
| Q: | What time did you arrive there at TGI Friday’s Restaurant? |
| A: | When we arrived there it was at around 5:15 to 6:00. |
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| Q: | A.M.? |
| A: | June 17, Sir. |
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| Q: | When you arrived there, what did you do, Mr. Witness? |
| A: | The barangay tanod present at that time pointed to us and turned over to us the alleged suspect who is the security guard of the said establishment then we went to the security guard and he voluntarily surrendered himself to us, together with the firearm, a .38 caliber. |
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| Q: | What did he tell you when he surrendered and gave to you his .38 caliber Mr. Witness? |
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| . . . | |
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| WITNESS: | |
| A: | That he allegedly hold (sic) a robber inside “while stealing” according to him a cash register of the bar and some assorted goods. |
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| COURT: | |
| Q: | Who told you that? |
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| WITNESS: | |
| A | : The security guard, the alleged suspect Sir. |
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| FISCAL FLORES: | |
| Q: | What else did he tell you? |
| A: | Nothing Sir, he fired his gun at the victim. |
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| . . . | |
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| FISCAL FLORES: | |
| Q: | After the said accused surrendered himself and his firearm, what else did you do at the said bar? |
| A: | Sir, we invited him to our precinct to shed light or to answer what he committed.[15] (Emphasis supplied). |
| Q: | Is it not true that when the accused Oscar Alcanzado in this case approached you, he was not evasive and that he voluntarily turned over the firearm and his person to you? |
| A: | Yes, Sir.[16] |
| Q: | Mr. Witness, when you arrived at the scene of the incident in questioned in this case, is it correct to say that you conducted the investigation right there and then? | |
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| Witness: | ||
| A: | Yes sir. | |
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| Atty. Alikpala: | ||
| | | And at that scene at that time was the accused in this case, Osca Alcanzado, is that correct? |
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| Witness: | ||
| | | Yes sir. |
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| . . . | | |
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| Atty. Alikpala: | ||
| | Mr. Witness, isn’t it also true that at that time you conducted an investigation you spoke with the accused in this case? | |
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| Witness: | ||
| | | Yes sir. |
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| Atty. Alikpala: | ||
| | | And when you spoke to the accused, did you tell him about his right to remain silent and his right to counsel? |
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| Witness: | ||
| | | He is not still turn-over to me by the police officer. |
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| . . . | | |
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| Atty. Alikpala: | ||
| | | Mr. Witness, so at that time that you conducted your investigation, you spoke to the accused? |
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| Witness: | ||
| | | Yes sir. |
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| Atty. Alikpala: | ||
| | | And did you tell him about his right to remain silent and his right to counsel? |
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| Witness: | ||
| | | In fact I don’t know that he is the accused during my initial inquiry. |
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| Atty. Alikpala: | ||
| | | But you knew that he was a Security Guard? |
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| Witness: | ||
| | Yes sir. | |
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| Atty. Alikpala: | ||
| | | And so could you tell us what happened when you talked to him? |
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| Witness: | ||
| | . | During the initial inquiry he claimed that . . . . he verbally claimed that he shot the victim because of self-defense |
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| . . . | | |
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| COURT: | ||
| | | He claimed that he shot the victim? |
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| Witness: | ||
| | | Yes, Your Honor. |
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| Atty. Alikpala: | ||
| | | And this was in the course of your investigation, correct? |
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| Witness: | ||
| | | Yes sir. |
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| Atty. Alikpala: | ||
| | | And the accused in this case, did not execute any written waiver of his right to remain silent, is that correct? |
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| Witness: | ||
| | | No sir. |
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| Atty. Alikpala: | ||
| | | And also the accused in this case did not execute any written waiver of his right to counsel, is that correct? |
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| Witness: | ||
| | | No sir. |
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| COURT: | ||
| | | What do you mean no? |
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| Witness: | ||
| | | He did not execute, sir. |
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| Atty. Alikpala: | ||
| | | And it is also correct that the time he was talking to you there was no lawyer present assisting the accused, is that correct? |
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| Witness: | ||
| | | Yes sir.[17] |