alberto garong

8/11/2019 Alberto Garong

1/26

ALBERTO GARONG, G.R. No.148971

Petitioner,

Present:

- versus - QUISUMBING, J.,Chairperson,

CARPIO,

CARPIO MORALES,

TINGA, andPEOPLE OF

THE PHILIPPINES, VELASCO, JR., JJ.Respondent.Promulg

ated:

November 29, 2006

x-----------------------------------------------------------------------------------------x

D E C I S I O N

VELASCO, JR., J.:

Where two criminal cases arose from

one incident, and the accused cries self-defense,

it is incumbent upon the accused to prove all of

its elements. Self-defense is a factual allegation

which should be proved during trial. Since thefindings of the trial court are regarded with

finality, we cannot review such factual issue on

appeal.

The Case

This is a Petition for Review on

Certiorari[1]under Rule 45 assailing the August 9,

1996 Decision[2]of the Court of Appeals (CA) and

the March 10, 2000 Resolution[3]which denied

petitioners Motion for Reconsideration in the

case docketed as CA G.R. No. 14852, People of

the Philippines, Plaintiff-Appelle, v. Alberto

Garong, Accused-Appellant. The CA affirmed

the March 3, 1993 Joint-Decision of the Regional

Trial Court (RTC), Branch 39, Calapan, Oriental

Mindoro in Criminal Case No. C-3406 convicting

petitioner of frustrated homicide. We previouslydenied petitioners Motion for Extension of time to

file petition in our August 15,

2001 Resolution[4]for breach of the material

dates rule. We further denied petitioners

Motions for Reconsideration in our October 3,

2001[5]and January 23,

2002[6]Resolutions. On June 19, 2002, however,

we set aside said Resolutions because of the

failure of petitioners counsel to state the material

dates in petitioners Motion for Extension of time

to file petition.[7] We likewise granted petitioners

request for a counsel de oficioon June 18,

2003.[8]

The Facts

The case arose from the incident in theevening of February 19, 1991 in Barangay Tibag,

Calapan, Oriental Mindoro which gave rise to two

(2) criminal cases. One was filed on May 10,

1991 against private complainant Gerson Morta,

which reads:
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn1


2/26

Criminal Case No. C-3402

That in the evening of

February 19, 1991, orthereabout, in barangayTibag, municipality ofCalapan, province ofOriental Mindoro,Philippines and within thejurisdiction of thisHonorable Court, accusedGERSON MORTA, aliasBOYET with intent to killand malice aforethought,

did then and there,willfully, unlawfully andfeloniously entered theresidential house of EfrenFajardo by forciblydestroying a portion of thefence located at the backthereof and once insidesaid premises, accusedhurled a piece of wood atEfren Fajardo who wasinjured on his face andimmediately thereafter,accused attacked,assaulted and stabbedCesar Guevarra andAlberto Garong with a pairof knife thrusts on theirbodies, thus commencingthe commission of thecrime of homicide, but didnot perform all the acts ofexecution which shouldproduce it by [reason] ofsome cause[s] other thanhis own spontaneousdesistance and i.e., thevictims were able tosuccessfully parry awayand evade the knifethrusts from their bodies

and the sound of agunshot that scared theaccused; thus, accusedexecuted by overt acts allthe elements necessary

for the commission ofMULTIPLE ATTEMPTEDHOMICIDE with thegeneric aggravatingcircumstance of unlawfulentry being attendant inthe commission thereof.

CONTRARY TOARTICLE 249 INRELATION TO

ARTICLES 250 AND 48OF THE REVISEDPENAL CODE.[9]

The other case was filed on May 16,

1992 against petitioner together with Cesar

Guevarra and Efren Fajardo for the crime of

frustrated homicide, to wit:

Criminal Case No. C-3406

That in the evening ofFebruary 19, 1991, orthereabout, in barangayTibag, municipality ofCalapan, province ofOriental Mindoro,Philippines and within the

jurisdiction of thisHonorable Court, accusedALBERTO GARONG yVILLANUEVA alias Bert,CESAR GUEVARRA yGARCIA and EFRENFAJARDO y GUEVARRA,with intent to kill and
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn9


3/26

conspiring, confederatingand mutually helping oneanother, did then andthere, willfully, unlawfullyand feloniously use

violence upon the personof one [G]ERSONMORTA with the use ofhand knives and by firinga hand gun at said victim,thereby inflicting upon hima gunshot wound locatedat the left inferior buttocksproducing severehemorrhage, which wouldnecessarily cause his

death, thus performing allthe acts of executionwhich should produce thecrime of homicide as aconsequence, butnevertheless did notproduce it by reason ofcauses independent oftheir will, that is, by thetimely and able medicalmanagement rendered onsaid victim whichprevented his death; thus,all of the accusedexecuted by overt acts allthe elements necessaryfor the commission of thecrime of FRUSTRATEDMURDER.

CONTRARY TOARTICLE 249 INRELATION TOARTICLES 250 AND 48OF THE REVISEDPENAL CODE.[10]

To remedy the apparent inconsistent

position of the State to prosecute the two (2)

criminal cases which arose from one incident and

involved the same parties, the parties agreed that

the prosecutions evidence in one criminal case

would be adopted as defense evidence in the

other case and vice-versa.[11] On March 3, 1993,

the Oriental Mindoro RTC, Branch 39 made a

finding of facts which were adopted by the CA as

follows:

On February 19,1991, in the evening,while Gerson Morta wason his way home fromwork, and while passingthe narrow alley (iskinita)

in front of the house ofEfren Fajardo the formerpulled the nipa roofing ofthe house of the latterwho was theninside. This act was seenby Cesar Guevarra whotook offense and beratedand scolded GersonMorta, saying Putang inamo Boyet, nagbabarako

ka yata and to whichGerson Morta repliedAno ngayon sa iyo kunghaklitin ko yon.

As both GersonMorta and CesarGuevarra were tipsy, oneword led to another untilthey were poised to cometo grips had it not been for

the timely intervention ofone Efren Gentaroy whoseparated them. Beforeleaving the place after theintervention of EfrenGentaroy, CesarGuevarra threw things atGerson Morta, one of
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn10


4/26

which, a casserole, hittingGerson Morta at the backof his head. Because ofthis, Morta left with thisparting threat, Babalikan

kita.

A few minutesthereafter, Gerson Mortareturned crashing thru thewooden fence at the backof the house of EfrenFajardo and once insidethe compound, hurled thepiece of wood he wascarrying which landed on

the face of Efren Fajardoand thereafter proceededto attack Cesar Guevarrawith his gulukan who,however, was not hit bythe stab blows deliveredby said Morta becauseAlberto Garong was ableto pull Guevarra away,and because of this,Morta turned his attentionto Alberto Garong andproceeded to attack him(Garong) with the samegulukan, but Garong wasable to evade thestabbing blows deliveredby Morta.

It was while Mortawas attacking Garongwho was retreating andthe trying [sic] to avoid thethrusts of the former whena single shot wasfired. Morta stopped,turned around andscampered away towardsthe direction of his housepassing through the same

fence which he earlierdestroyed.

On the other hand,the version of Gerson

Morta may be stated asfollows:

While coming fromwork that night inquestion, [Morta]accidentally slipped on acanal causing him to leanrather heavily on the nipawall of the house of EfrenFajardo which called the

attention of CesarGuevarra who thenscolded him and evenhurled things againsthim. One of the thingsthrown which landed on[sic] his (Mortas) head atthe back was acasserole. Mortaproceeded on his way tohis house because,according to him, theywere drunk.

Upon reaching hishouse Morta asked hiswife to prepare his clothesas he was going to attendthe Bible study in a placealong the provincialroad. To wash himself heopened the faucet locatedon the ground floor of thehouse of his mother whowas his neighbor andfinding that there was nowater in the faucet or tap,he borrowed a pail from aneighbor, disrobed, got atowel and proceeded to


5/26

the well to clean or washhimself.

When he was on hisway to a well and only

about one meter awayfrom the house of CesarGuevarra and EfrenFajardo he saw the twowith Garong blocking theroad (nakaharang sakalye) and sensingtrouble, he turned aroundand intended to return tohis house and while hisback was turned he was

shot from behind byAlberto Garong andcompany rushing towardshim and so he forcedhimself to get up andwalked towards thedirection of his house andGarong and companypursued him but his(Mortas) wife interceded.

Shortly after theincident Police OfficerCristobal Ramos repairedto the crime scene andsaw drops of blood on thealley leading to the houseof [Gerson] Morta.

PO1 Ricardo Vivastogether with PO3 Asiloinvestigated the incidentin question. When PO1Ricardo Vivasinvestigated GersonMorta atthe Oriental Mindoro Provincial Hospital, GersonMorta told him thatAlberto Garong shothim. When said

policeman went to thescene of incident hetalked with CesarGuevarra [and] EfrenFajardo but the two did

not tell anything about theassault made by GersonMorta against them andAlberto Garong.

For the gunshotwound sustained, GersonMorta was confined andtreated inthe Oriental Mindoro Provincial Hospital for around

ten days and for which heincurred expenses in theamount ofP10,000.00. Had it notbeen for the timely andable medical assistancerendered, Gerson Mortawould have died.

He was likewiseprevented fromperforming his customarylabor as carpenter,thereby depriving him ofhis daily income ofP120.00 a day.[12]

The trial court rendered the March 3,

1993 Joint Decision:

ACCORDINGLY, inCriminal Case No. C-3402, accused GersonMorta is acquitted of thecrime charged withcosts de oficio, for failureof the prosecution toprove his guilt beyond
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn12


6/26

reasonable doubt and thebail posted for hisprovisional liberty ishereby cancelled.

x x x x

In Criminal Case No.C-3406, the Court findsaccused Alberto Garongguilty beyond reasonabledoubt, as principal, of thecrime of FrustratedHomicide penalized underArticle 249 in relation toArticles 6 and 50 of the

Revised Penal Codebyprision mayor.

Considering thepeculiar facts of the caseand applying Article 250of the Revised PenalCode the penalty lower byone degree than thatprovided by law may beimposed.

Applying theIndeterminate SentenceLaw accused AlbertoGarong is herebysentenced to sufferimprisonment of FOURMONTHS of arrestomayor, as minimum, toFOUR YEARS and TWOMONTHS of prisioncorreccional, asmaximum, together withaccessory penaltiesprovided by law and topay the costs.

Accused AlbertoGarong is likewiseordered to indemnify the

victim Gerson Morta in theamount of P15,000.00 byway of actual andcompensatory damages,without subsidiary

imprisonment in case ofinsolvency.[13]

Garong appealed the trial courts decision

to the CA; however, his appeal in CA-G.R. CR

No. 14852 was turned down as the August 9,

1996 Decision of the CA affirmed the March 3,

1993 Joint Decision of the Calapan, Oriental

Mindoro RTC.

His Motion for Reconsideration was

likewise rejected in the March 10,

2000 Resolution[14]of the CA.

Persistent, Garong now seeks relief from

the adverse rulings of the CA through the instant

petition before this Court.

The Issues

WHETHER THE CAPROPERLY AFFIRMEDTHE TRIAL COURTS

REJECTION OFPETITIONERS PLEA OFSELF-DEFENSE; AND

WHETHER THE CAPROPERLY AFFIRMEDTHE TRIAL COURTSCONVICTION OF
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn13


7/26

PETITIONER FORFRUSTRATEDHOMICIDE

The Courts Ruling

The petition has no merit.

Petitioner contends that he acted in self-

defense against the real aggressor, Gerson

Morta. He theorizes that the plea of self-defense,

if considered, would introduce an element of

reasonable doubt which would entitle him to

acquittal.[15] Petitioner also asserts thatreasonable doubt exists in his favor given the

inconsistencies of the complainants eyewitness,

Reylita Nery, who identified the petitioner as the

gunman. To bolster petitioners claim that

Gerson Morta was the aggressor, he presented

the testimony of Gliceria Aldovino, a witness who

allegedly saw Gerson Morta attack the

petitioner.[16] Petitioner also disputes the

circumstantial evidence against him as

insufficient proof of his culpability; and lastly, he

argues that his motive was not proven in trial and

that the trial court erred in awarding damages.[17]

In essence, what petitioner is actually

asking the Court is to determine whether he

acted in self-defense, which is essentially a

question of fact.[18] We have held repeatedly thatthis Court is not a trier of facts. In petitions

brought under Rule 45 of the Revised Rules of

Court, only questions of law can be

reviewed.[19] Since the petition is anchored on

the claim of self-defense which is a factual

allegation already rejected by the trial and

appellate courts, the petition can be denied

outright.

Although there are exceptions to Section

1, Rule 45, the instant petition does not

convincingly fall in any of the exceptions. The

grounds relied upon by the petitioner: when the

lower court has gravely abused its discretion,

when the judgment is based on a

misapprehension of the facts, when the findings

of fact are not supported by the records or are so

glaringly erroneous or are not supported bycompetent evidence,[20]are not present in this

case. In contrast, the trial courts findings of fact

are supported by evidence and as such, were

affirmed by the CA.

Petitioner however charges the CA for

departing from the usual course of judicial

proceedings in affirming the findings of the trial

court.[21] On the contrary, we have consistently

held that findings of trial courts are accorded the

highest degree of respect, if not finality. Factual

findings of the trial court, adopted and confirmed

by the CA, are final and conclusive and may not

be reviewed on appeal.[22] Moreover, we do not

see any departure from the usual course of

appellate reviewthe CA weighed the

assignments of error made by petitioner againstthe trial courts findings.

The CA considered the following

circumstantial evidence found by the trial court:
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn15


8/26

1. NeitherGarong nor any of hiscompanions reported theincident in question to thepolice authorities or to the

barangay officials ofTibag, Calapan, OrientalMindoro.

2. Efren Fajardowho claimed that he washit on the face by Mortawith a wooden club didnot submit himself tomedical examination ortreatment.

3. Shortly afterthe incident the policeofficer who repaired to thecrime scene saw drops ofblood on the alley leadingto the house of GersonMorta.

4. Gerson Mortatold the police investigatorwho investigated him inthe hospital that AlbertoGarong shot him whileCesar Guevarra andEfren Fajardo did not tellthe policeman, who wentto the crime scene andtalked to them, anythingabout the assault madeby Gerson Morta againstthem and Garong.

5. AlbertoGarong admitted that hehad a gun which he usedto fire during New Yearand which he surrenderedduring the last election.[23]

For self-defense to prosper, there must

be: (1) unlawful aggression; (2) reasonable

necessity of the means employed to prevent or

repel it; and (3) lack of sufficient provocation on

the part of the person defending himself.[24] The

burden of proving the elements of self-defense

shifts to the accused. In this case, the

prosecution presented the following compelling

evidence, among others: 1) positive identification

by the complainant; 2) physical evidence of blood

drops found by the police officer; 3) the

admission of petitioner that he had a gun at the

time of the incident; and 4) the point of entry ofthe gunshot in the complainants left

buttock. The foregoing circumstantial and pieces

of physical evidence disprove the claim of self-

defense. While petitioner harps on the alleged

complainants unlawful aggression, the trial court

found that there was no proof beyond reasonable

doubt against the complainant. Hence, Gerson

Morta was acquitted in Criminal Case No. C-

3402. Assuming arguendothat Gerson Morta

was the aggressor, petitioner must prove the

existence of the two (2) other elements of self-

defense: the aforecited second (2nd) and third

(3rd) elements. A mere allegation of self-defense

will not exempt Garong from criminal

liability. Petitioner should squarely meet the

circumstantial and physical evidence presented

by the prosecution. Unfortunately, there was nosufficient or satisfactory explanation for the

aforementioned evidence against the petitioner.

With regard to petitioners failure to

immediately report the incident to the police, the

Solicitor General pointed out in his
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn23http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn24http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn23


9/26

Comment[25]that petitioners excusethat he

had to attend a funeral in Manilais feeble. It is

contrary to common human experience to

immediately leave the place of the incident

without reporting to the police.[26]As regards the

inconsistencies in the testimony of the witness,

the CA held:

Regarding theinconsistencies anddiscrepancies referred toby accused-appellant,suffice it to state that theyare only minor details

which do not affect thecredibility of thewitnesses. In fact, theyare even consideredbadges of truth andcandor (People vs.Gamboa, 194 SCRA572). Besides, OurSupreme Court in thecase of People vs.Gabaton (203 SCRA

447) ruled that witnessespossessed with differentcapacities for observationcannot be expected torecall with accuracy oruniformity, mattersconnected to the mainovert act.

From the Peoplesbrief and the records of

the case, it can begleaned that the Solicitor-General correctlyobserved that proofbeyond reasonable doubtis shown by questioningthe testimony of the

complainant in court[27]x xx

We reiterate that the determination of the

sufficiency of evidence and the said courts

determination on the credibility of witnesses are a

question of fact that is not, as a general rule,

subject to the Courts review.[28]As regards

petitioners claim that motive was not proven

during trial, the CA reasoned:

An apparent lack ofmotive for committing a

criminal act, as argued byaccused-appellant, doesnot necessarily mean thatthere is none. It may behidden away orinaccessible to Ourobservation(People vs.Taneo, 58 Phil. 255).

Moreover, the rule iswell-settled that theprosecution need not

prove motive on the partof the accused when thelatter has been positivelyidentified as the author ofthe crime (People vs.Conceron, 229 SCRA551). Motive would notbar conviction of theaccused as long as thecrime itself and theidentity of the perpetrator

had been indubitablyestablished (People vs.Layam, 234 SCRA 424).In the case at bench,accused-appellantwaspositivelyidentified. Therefore,
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn25http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn25


10/26

there is no dispute aboutidentification.[29]

Given these findings, we find no reason

to warrant the reversal of the judgment of

conviction.

WHEREFORE, the instant petition

is DISMISSED. The August 9, 1996 Decision

and the March 10, 2000 Resolution of the Court

of Appeals in CA-G.R. CR No. 14852 and the

March 3, 1993 Joint Decision of the Calapan,

Oriental Mindoro Branch 39 Regional Trial Courtin Criminal Case No. C-3406 are AFFIRMED IN

TOTO.

Costs against petitioner.

SO ORDERED.

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs. ARTURO CAVERTE andTEOFILO CAVERTE, accused-appellants.

D E C I S I O N

DE LEON, JR., J.:olanski

Before us on appeal is the Decision[1]datedJanuary 27, 1995 of the Regional Trial Court ofTagbilaran City, Branch 1, finding appellantsTeofilo Caverte and Arturo Caverte guilty ofMurder in Criminal Case No. 8126 and appellantArturo Caverte guilty of Attempted Murder inCriminal Case No. 8127.

The Information for Murder in Criminal Case No.8126 against appellants Teofilo Caverte and

Arturo Caverte and the Information for AttemptedMurder in Criminal Case No. 8127 againstappellant Arturo Caverte, respectively read, asfollows:

Criminal Case No. 8126:

"That on or about the 8th day ofNovember, 1992, in themunicipality of Pilar, province ofBohol, Philippines, and withinthe jurisdiction of the HonorableCourt, the above-namedaccused, conspiring,confederating and mutuallyhelping each other, with intent to

kill and treachery by suddenlyattacking the victim withoutgiving the latter an opportunity todefend himself, takingadvantage of superior strength,did then and there wilfully,unlawfully and feloniously attack,assault and stab with the use ofa stainless kitchen knife andshoot with the use of 12 gaugeshotgun one Abdon RichardAlesna thereby inflicting mortalwounds or injuries on the vitalparts of the body of the saidvictim which caused hisimmediate death, to the damageand prejudice of the heirs of thesaid victim.

Acts committed contrary to theprovisions of Article 248 of theRevised Penal Code with theaggravating circumstance ofnighttime being purposelysought for or taken advantage ofby the accused to facilitate thecommission of the crime."

Criminal Case No. 8127:
http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn1http://sc.judiciary.gov.ph/jurisprudence/2006/november2006/148971.htm#_ftn29


11/26

"That on or about the 8th day ofNovember, 1992, in themunicipality of Pilar, province ofBohol, and within the jurisdictionof this Honorable Court, the

above-named accused, withintent to kill and withoutjustifiable cause and withtreachery, by suddenly attackingthe victim without giving thelatter an opportunity to defendhimself, did then and there,willfully, unlawfully andfeloniously attack, assault andshoot one Nersas Petalcorinhitting the latters left forearm

with the use of a .38 caliberrevolver, thus the said accusedhaving therefore commenced thecommission of the crime ofMurder directly by overt acts, butdid not perform all the acts ofexecution which would haveproduced the felony by reason ofsome cause or accident otherthan his own spontaneousdesistance, to wit: the timelyescape of the victim from thescene of the crime and failure ofthe accused to inflict a fatalinjury to the victim; to thedamage and prejudice of thesaid offended party.

Acts committed contrary to theprovisions of Article 248 of theRevised Penal Code in relationto Articles 6 and 51 of the sameCode." Missc

Upon being arraigned, appellants Teofilo Caverteand Arturo Caverte pleaded not guilty to theInformation for Murder in Criminal Case No.8126. Appellant Arturo Caverte likewise pleadednot guilty to the Information for Attempted Murderin Criminal Case No. 8127. The prosecution and

the defense agreed on a joint trial of both criminalcases.

The evidence of the prosecution shows that inthe evening of November 8, 1992, Engr. Nersas

Petalcorin, Chief Field Engineer of HanilDevelopment Company Ltd. located in Barangaydel Pilar, Pilar, Bohol, was drinking liquor withfellow workers Engr. Felixberto Calamba andRichard Alesna in the staff house inside the Hanilcompound. The son of Engr. Petalcorin,Giovanni, was also around in the staff house.[2]

At around 9:30 oclock Engr. Petalcorinwent tothe canteen which is approximately sixty (60)meters away from the staff house to buy

cigarettes. Since the door of the canteen wasalready closed, he decided to try the storelocated outside the compound. Upon reachingthe main gate, however, he found that the storeoutside the compound was closed. As he turnedaway from the main gate to join his companionsin the staff house, he heard a clicking sound fromthe guard house which is located just beside themain gate. He recognized the appellant, ArturoCaverte, who was on the elevated platform of theguard house aiming his service revolver at him.At almost the same instant, appellant ArturoCaverte fired his gun twice, hitting Petalcorin inthe left forearm.[3]

Petalcorin lost his balance due to the impact ofthe gunshot. However, he managed to stand andimmediately ran outside the compound to seekhelp. Along the national highway, he met thebarangay captain of del Pilar who took him to thehouse of a certain Melchor where he wasadministered first aid treatment.[4]

Petalcorin was subsequently taken on board acompany car to Simon Toribio Memorial Hospitalin Carmen, Bohol. After the initial treatmentthere, he was transferred to Gov. CelestinoGallares Hospital in Tagbilaran City where hewas confined for at least twelve (12) hours. Theattending physician, Dr. Manuel Relampagos,
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn2http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn4http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn3http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn2


12/26

opined that the injury sustained by Petalcorinwhich penetrated his left forearm required atleast thirty (30) days to heal.[5]

After recovering from his gunshot wound,

Petalcorin resigned from his work.[6]

Misspped

Meanwhile, upon hearing the two (2) gunshots, itappeared that Giovanni and his companions inthe staff house went outside to investigate.Giovanni proceeded to the canteen where hesaw Richard Alesna who was conversing with aKorean employee near the kitchen. After the saidconversation, appellant Teofilo Caverte appearedin the canteen holding a knife. Teofiloapproached Richard Alesna and they grappled

for possession of the knife. In the meantime,Arturo Caverte appeared, holding a shotgun, andcommanded Richard Alesna to kneel before him.Alesna refused, and Teofilo allegedly stabbedhim. Arturo also shot Richard Alesna with hisshotgun. Alesna was rushed to the hospitalwhere he was pronounced dead on arrival.[7]

Dr. Lourdes Atup-Tan, Municipal Health Officer ofPilar, Bohol, conducted the post mortemexamination on the body of Richard Alesna. HerAutopsy Report[8]dated November 9, 1992shows the following findings, to wit:

1.......Gunshot wound on theright posterior lumbar region 3.5inches diameter irregular edges,presence of powder burns,penetrating right anteriorabdominal lumbar region.

2.......Exit wound right anteriorlumbar region 1/2 inch diameter.

3.......Eight pieces roundedmetallic foreign body 1/4 inchdiameter, 3 pieces penetratelumbar spinal cord nerve, bloodvessels, 4 pieces lodge rightpubic muscles, bones and blood

vessels, 2 pieces right pelvicregion perforating urinarybladder.

4.......Presence of massive

hemorrhage noted several bloodclots.

Cause of Death: Shocksecondary to massivehemorrhage due to gunshotwound.

SPO3 Hermogenes Cabanes who was thepoliceman on duty at the Pilar policeheadquarters in Pilar, Bohol in the evening of

November 8, 1992, testified that appellant ArturoCaverte surrendered to him at around midnighton November 8, 1992 for allegedly shootingsomebody inside the compound of HanilDevelopment Company in Barangay del Pilar.Appellant Arturo Caverte who was thenaccompanied by the barangay captain ofBarangay del Pilar, surrendered to him a .38caliber revolver[9]and its two (2) emptyshells.[10]Sppedx

SPO3 Cabanes immediately proceeded to theHanil compound in Barangay del Pilar toinvestigate. During his inquiry, the people thereinhanded to him a hunting knife[11]and ascabbard[12]which, according to them, "belongedto the enemy of the security guard".[13]SPO3Cabanes also recovered a slug[14]which heturned over to SPO2 Venancio Mante, includingthe other pieces of evidence that he hadrecovered. The shotgun[15]which appellant ArturoCaverte used in shooting Richard Alesna,together with one empty shell, was turned overby Gregorio Margate, Chief Security Officer ofHanil Development Company, to SPO2 Mante inthe afternoon of November 9, 1992.

Appellant Arturo Caverte admitted having shotEngr. Nersas Petalcorin and his nephew, RichardAlesna, but interposed self-defense. Arturo
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn5http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn15http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn14http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn13http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn12http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn11http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn9http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn8http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn6http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn5


13/26

Caverte testified that he was a security guard ofthe NICO Security Service Agency in TagbilaranCity and was detailed at the compound of theHanil Development Company Ltd. in Barangaydel Pilar, Pilar, Bohol. On November 8, 1992, at

around 9:45 in the evening, Arturo Caverte andhis fellow security guard, Genaro Busbos, wereapproached by Engr. Petalcorin and RichardAlesna, both of whom appeared drunk, at theguard house of Hanil Development Company.Engr. Petalcorin pointed his finger at appellantCaverte and remarked that the people of Pilarwere boastful. Simultaneously, Richard Alesnapulled out a knife and stabbed the table in theguard house three (3) times.[16]Arturo Cavertedrew his .38 caliber revolver and fired a warning

shot. Engr. Petalcorin then drew a short firearmfrom his waist prompting Arturo Caverte to shoothim in the arm.[17]

After Petalcorin has fled, Alesna and Busbosbegan grappling for possession of the knife.When both had disengaged, Alesna ran towardsthe staff house. Arturo Caverte and Busbospursued Alesna to take the knife. However,Alesna attacked Arturo Caverte, thus forcing himto shoot Alesna with a shotgun.[18]Thereafter,Arturo Caverte surrendered to the policeaccompanied by the head of the security guards,Gregorio Margate.

Arturo Caverte belied the testimony ofprosecution witness Giovanni Petalcorin thatTeofilo Caverte stabbed Richard Alesna whenthe latter refused to kneel as ordered by ArturoCaverte. Arturo Caverte stated that his elderbrother, Teofilo, was in their house at the time ofthe incident. Arturo had seen him there when hedropped by before he surrendered to the police.Arturo Caverte also stated that GiovanniPetalcorin was not in the Hanil compound whenthe incident occurred as he had not seen himsince his father, Engr. Petalcorin, and RichardAlesna started drinking liquor at 6:00 oclock inthe evening of that day inside the staffhouse.[19]Jospped

The testimony of defense witness GenaroBusbos reveals that prior to the shooting incident,Engr. Nersas Petalcorin and Richard Alesna,who were both drunk, approached theguardhouse situated at the main gate of Hanil

Development Company Ltd. Engr. Petalcorinpointed his finger at Busbos and Arturo Caverteand shouted that the people in Pilar, Bohol wereboastful ("hambogero"). Petalcorin repeated theremarks three (3) times and to which Busbosreplied that they were not looking for a quarrel.Apparently irked, Alesna brought out a knife thatprompted Arturo Caverte to draw his servicerevolver and fire a warning shot. When Engr.Petalcorin pulled a gun from his waist, ArturoCaverte shot him on the arm. Petalcorin fell to

the ground but managed to get up and run.Richard Alesna attacked Busbos with the knifeand the two grappled for possession thereof.[20]

While Busbos and Alesna were grappling forpossession of the knife, Arturo Caverte fired atAlesna twice but missed. Subsequently, Busbospushed Alesna and the latter ran outside theguardhouse still holding his knife. Arturo Cavertefollowed Alesna and shot him with his serviceshotgun that caused his death.[21]

Genaro Busbos belied the testimony of GiovanniPetalcorin that Teofilo Caverte grappled withRichard Alesna for the possession of the knife. Inaddition, Busbos belied that Teofilo Cavertestabbed Alesna with a knife when the latterrefused to kneel as ordered by Arturo Caverte.He stated that Giovanni Petalcorin was broughtby his father to Hanil compound in the last weekof October, 1992. However, the young Petalcorinhad left and was no longer inside the compoundon November 8, 1992, when the shootingincident occurred.

For his part, appellant Teofilo Caverte testifiedthat he was in the house of his parents inPoblacion, Pilar, Bohol in the evening ofNovember 8, 1992. At about midnight, his brotherArturo dropped by the house with GregorioMargate and informed him that he shot
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn16http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn21http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn20http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn19http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn18http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn17http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn16


14/26

somebody in the Hanil compound. Thereafter,Arturo and Gregorio Margate proceeded to themunicipal building to surrender to the police.Teofilo came to know that he was implicated inthe shooting incident only on February 6, 1992 or

three (3) months thereafter, when policemanRodrigo Butron informed him that a warrant forhis arrest was issued.[22]

After analyzing the evidence, the trial court madethe following findings:

a)......That the accused ArturoCaverte, a security guard ofHanil Construction and his co-accused Teofilo Caverte on

November 8, 1992 in theMunicipality of Pilar, Province ofBohol conspiring and helpingeach other with the use of ashotgun and a kitchen knifestabbed and shot to death thevictim Richard Alesna (CriminalCase No. 8126, For:Murder);Sppedjo

b)......That the accused ArturoCaverte after shooting andstabbing to death RichardAlesna, Arturo Cavertesurrendered to SPO2 VenancioMante;

c)......That the accused ArturoCaverte in the afternoon ofNovember 5(sic), 1992 at thestaff house of the HanilCompound located at Del Pilar,Pilar, Bohol, attacked thecomplainant Nersas Petalcorinby shooting him with a .38caliber revolver, hitting his leftforearm which, as aconsequence, the complainantNersas Petalcorin fell down andsubsequently stood up and ran;

d)......The fact of the killing of thedeceased victim Richard Alesnais admitted by the accusedArturo Caverte but interposedself-defense;

e)......The accused TeofiloCaverte brother of the accusedArturo Caverte interposed thedefense of alibi.

The Court anchored itsconclusions not only (People vs.Adlawon, Jr., 217 SCRA 489)which the witnesses testify butmore particularly the demeanor

of the witnesses on the witnessstand (People vs. Camadlo, 217SCRA 162). The Court believesthe prosecution witnessesbecause they testified in aspontaneous and straightforwardmanner (People vs. Pacana, 218SCRA 346).

The defense of alibi interposedby the accused "the same cannot prevail over the positiveidentification of the prosecutionwitnessesthat alibi to be givenfull faith and credit must notleave any doubt as to itsplausibility (People vs. Gabatin,203 SCRA 225; People vs.Bragoes, 203 SCRA 555; Peoplevs. Urguis, 203 SCRA 738;Seton vs. Court of Appeals, 204SCRA 473; People vs. Lee, 204SCRA 900; People vs. Babac,204 SCRA 978).

It is the view of the Court that inthe commission of the crime ascharged in Criminal Case No.8126 there was conspiracy as itcan be "inferred from the acts of
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn22http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn22


15/26

the accused Arturo Caverte andTeofilo Caverte, as brothers(People vs. Nabaluna, 142SCRA 448). It is inferred fromthe acts of the accused (People

vs. Abueg, 145 SCRA622). Nexold

The crime committed falls withinthe purview of Murder for "thekilling of the victim wasattended with the presence ofthe qualifying circumstance ofabuse of superior strength(People vs. Milas, 218 SCRA473). The killing was committed

with treachery (People vs.Manrique, Jr., 223 SCRA 196).

Based upon the evidenceadduced by the prosecution anddefense, the prosecution hasproved the guilt of the accusedin Criminal Cases Nos. 8126 and8127.[23]

Accordingly, the trial court in Criminal Case No.8126, found appellants Teofilo and ArturoCaverte guilty of Murder and sentenced each ofthem to suffer an imprisonmentof reclusion perpetuaand to pay the heirs of thevictim P50,000.00 by way of indemnity andP50,000.00 for moral and exemplary damageswithout subsidiary imprisonment in case ofinsolvency. In Criminal Case No. 8127, the trialcourt found appellant Arturo Caverte guilty ofAttempted Murder and sentenced him to sufferthe indeterminate penalty of "TWO (2) YEARS,FOUR (4) MONTHS and ONE (1) DAY, theMinimum of the Medium Period of PrisionCorreccional, as Minimum, to EIGHT (8) YEARS,EIGHT (8) MONTHS and ONE (1) DAY, theMinimum of Prision Mayorin its Medium Period,as Maximum, and to pay P50,000.00representing indemnity and exemplary damages,without subsidiary imprisonment in case ofinsolvency."[24]

In assailing the aforequoted Decision of the trialcourt, appellants Arturo Caverte and TeofiloCaverte raised the following assignment oferrors: Miso

I

THE HONORABLE TRIALCOURT ERRED INCONVICTING ACCUSED-APPELLANTS IN THE TWO (2)CASES EVEN IF THEEVIDENCE ADDUCED CANNOT IRREMEDIABLYESTABLISH THEIR GUILTBEYOND REASONABLE

DOUBT; AND

II

THE HONORABLE TRIALCOURT ERRED IN NOTGIVING FULL FAITH ANDCREDIT TO THE VERSIONADDUCED BY THE DEFENSEWHICH, IF OBJECTIVELY ANDDISPASSIONATELYANALYZED, IS MORENATURAL AND CONSISTENTWITH TRUTH AND REASON.[25]

In the Appellees Brief, the Office of the SolicitorGeneral recommended the acquittal of TeofiloCaverte and the conviction of Arturo Caverte onlyfor homicide with the attendant mitigatingcircumstance of voluntary surrender in CriminalCase No. 8126 for murder; while it recommendedArturo Cavertes acquittal in Criminal Case No.8127 for attempted murder based on thesubmissions therein made.

The respective witnesses of both partiespresented conflicting versions of the incident thatled to the wounding of Engr. Nersas Petalcorinand the killing of Richard Alesna otherwiseknown as Abdon Richard Alesna. In arriving at


16/26

the assailed decision, the trial court accorded fullfaith and credence to the testimonies ofprosecution witnesses Nersas Petalcorin andGiovanni Petalcorin, stating that the same appearspontaneous and straightforward while it

dismissed or disregarded appellants Arturo andTeofilo Cavertes respective defenses of self-defense and alibi. It has been held that unlessthe trial judge plainly overlooked certain facts ofsubstance and value which, if considered, mightaffect the result of the case, his assessment ofthe credibility of the witnesses must berespected.[26]Hence, in that light, the merit of thedefenses respectively raised by the appellants inthe instant appeal depends primarily on whetheror not the trial court overlooked or disregarded

certain facts of substance or value which, ifproperly considered, might affect its decision inthese criminal cases.

It may be noted that the victims and the appellantArturo Caverte, were all working in the compoundof the Hanil Development Company Ltd. Despitethis fact, the prosecution witnesses miserablyfailed to show any ill motive on the part ofappellant Arturo Caverte that could have possiblymotivated him to shoot Engr. Nersas Petalcorinand Richard Alesna. Manikx

On the other hand, it appears that prior to theshooting incident Richard Alesna was scolded byappellant Arturo Caverte for passing through thebarbed wire perimeter fence in entering the Hanilcompound. While Engr. Petalcorin claimed thathe had earlier patched up the differencesbetween appellant Arturo Caverte and hisnephew,[27]the same was apparently not so asshown by the evidence adduced relative to theincident in the evening of November 8, 1992.

The fact that the shooting incident occurred atthe vicinity of the guard house while GenaroBusbos and appellant Arturo Caverte were in theperformance of their duty as security guards,lends credence to the claim of the defense thatEngr. Petalcorin and Alesna were both drunkwhen they approached the guard house and

started shouting insults at the security guards.The testimony of Engr. Petalcorin that he cameto the main gate merely to look for a store to buycigarettes after failing to do so at the canteen,does not inspire belief. The time honored test in

determining the value of the testimony of awitness is whether or not such is in conformitywith knowledge and consistent with the commonexperience of mankind.[28]It must be noted thatthe shooting incident happened on November 8,1992 which was a Sunday.[29]Having beenemployed in the company for sometime, Engr.Petalcorin should have known all along that thecanteen inside the Hanil compound was not openfor business on Sundays and that the storeoutside the compound was already closed at that

time.

Curiously enough, Engr. Petalcorin never filed acomplaint with the management of the HanilDevelopment Company Ltd. against appellantArturo Caverte and Genaro Busbos in connectionwith the shooting incident. He even resigned fromthe said company effective on the last day ofNovember 1992. Such actuation of Engr.Petalcorin is inconsistent with the attitude of aperson who is totally free from blame.

Likewise, the lower court failed to note that thetestimony of Giovanni Petalcorin is laden withimprobabilities that detract from his credibility. Asthe Solicitor General aptly observed, it appearsstrange why the young Giovanni Petalcorinshould proceed to the canteen when he testifiedthat the reported gunshots came from thedirection of the guardhouse. Also, GiovanniPetalcorin could not have seen appellant TeofiloCaverte inside the canteen whom he claimed tobe standing and holding a knife[30]for the reasonthat the canteen did not open for business onthat day which was a Sunday. Engr. Petalcorinhimself noted that the door of the canteen wasclosed at that time.[31]In addition, it is difficult toimagine that appellant Arturo Caverte wouldshoot Richard Alesna at the back with a shotgunwhile Richard Alesna and appellant TeofiloCaverte were grappling for possession of the
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn26http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn31http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn30http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn29http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn28http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn27http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn26


17/26

knife as Giovanni would make it appear.Considering the nature of the firearm used byArturo Caverte, which in this case was a shotgun,there was great possibility that his brother,Teofilo, could have been hit also inasmuch as

there was an exit wound at Alesnas right anteriorlumbar region.32 [Exhibit "A".32 In thisconnection, it has been held that testimonialevidence to be believed must not only proceedfrom the mouth of a credible witness but mustforemost be credible in itself.[32]Manikan

Consequently, the testimony of defense witnessGenaro Busbos appears more convincinglyreflective of the actual shooting incident onNovember 8, 1992. There is no apparent motive

on his part for giving his testimony except to tellthe truth. As a matter of fact, we can not perceivefrom his testimony any bias or partiality to any ofthe protagonists. The pertinent portions of hisunbiased and credible testimony are quotedhereunder, to wit:

(ATTY. TINAMPAY TOWITNESS)

Q:......That evening of November8, 1992 during your Guard duty,did you observe anythingunusual that happened?

A:......Yes, sir.

Q:......What was it?

A:......Engr. Nersas Petalcorinand Engr. Abdun Richard Alesnacame near to us.

xxx

Q:......When Engrs. NersasPetalcorin and Richard Alesnawent or approached both of you,what happened?

A:......They looked for troublewith us because at that timewhen they approached us, theywere drank (sic).

Q:......What did the two or one ofthem say when they approachedboth of you security guards?

A:......They pointed their fingersat both of us one by one andsaid that we who (sic) are fromPilar are boastful (hambogero).

ATTY. TINAMPAY: We requestthat the word "hambogero" be

reflected in the record.

Q:......Who of the two engineersmade that statement?

A:......It was Engr. NersasPetalcorin who said those words.

Q:......How about the otherengineer, Alesna, did he not saysimilar statements to you both

(sic) security guards? Maniks

A:......He did not say anything.

Q:......How many times did Engr.Petalcorin say those words orremarks?

A:......Maybe he said that threetimes.

xxx

Q:......When Engr. NersasPetalcorin made thosestatements three times to both ofyou Security Guards, what didyou or your co-Security Guards(sic) Arturo Caverte do or react?
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn32http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn32


18/26

A:......I told Engr. NersasPetalcorin saying, "Sir, do notmake trouble with us." When Isaid that, this Abdun Alesnapulled his knife and he stabbed

the table.

Q:......How many times did Engr.Abdun Alesna stab the table withhis knife?

A:......Three times.

xxx

Q:......When Engr. Abdun Alesna

stabbed the table three timesfollowing which you remarked,"Do not quarrel with us, Sir",what did his co-Engineer do whoaccording to you was nearby?

A:......I saw that Engr. NersasPetalcorin pulled his gun fromhis waist.

Q:......What gun was that, long

barreled or short barreled?

A:......Short barreled gun.

xxx

Q:......And with the gun Engr.Nersas Petalcorin got from hiswaist, what happened next?

A:......Arturo Caverte saw thatgun being pulled by Engr.Nersas Petalcorin from his waistand Arturo Caverte went up thetable and fired it (sic) Engr.Nersas Petalcorin first.Oldmiso

Q:......So are you telling orpicturing to the Court that while

Engr. Nersas Petalcorin washolding his short barreled guntaken from his waist, ArturoCaverte went on top of the tableand fired at Nersas Petalcorin.

A:......Arturo Caverte shot thehand of Nersas Petalcorin.

xxx

Q:......Did you notice if NersasPetalcorin was hit?

A:......To my belief, I believed hewas hit.

Q:......And what happened afterArturo Caverte fired his gunonce?

A:......Nersas Petalcorinstaggered and fell to the ground.

Q:......The same spot where hewas aimed at and hit?

A:......Yes, sir.

Q:......After that, what did Engr.Nersas Petalcorin do?

A:......Engr. Nersas Petalcorinstood up and ran outside thecompound.

Q:......When Engr. NersasPetalcorin got his short barreled

gun from his waist, what was theother engineer, Richard Abdundo (sic)?

A:......Engr. Alesna thrusted hisknife at me.

xxx


19/26

Q:......And were you hit?

A:......I was able to hold hishand.[33]

xxx

Q:......Then what happenednext?

A:......Arturo Caverte told me torelease Richard Alesna becauseArturo Caverte had no morebullets.

Q:......Did you release Richard

Alesna?

A:......I released him pushing himtowards outside the guardhouse.

Q:......And what happened tohim? Ncmmis

A:......Richard Alesna rantowards the office.

Q:......Do you know whathappened to Richard Alesna?

A:......Arturo Caverte followed.

Q:......And what happened.

A:......While running, ArturoCaverte is (sic) carrying his gunand followed Richard Alesna.

Q:......Why did Arturo Cavertefollowed (sic) Engr. RichardAlesna?

FICAL MAGDOZA: Witness isincompetent.

COURT: Witness may answer.

A:......Arturo Caverte followedRichard Alesna because RichardAlesna was carrying a knife.

Q:......At the time that ArturoCaverte followed Richard Alesnawith a knife, how many times didArturo Caverte shot (sic) RichardAlesna?

A:......Once.[34]

From the foregoing there appears sufficientjustification for appellant Arturo Caverte to shoot

Engr. Nersas Petalcorin in self-defense. There isself-defense when the following elements concur:(1) unlawful aggression on the part of the personinjured or killed by the offender; (2) reasonablenecessity of the means employed to prevent orrepel it; and (3) lack of sufficient provocation onthe part of the person defending himself.[35]Engr.Nersas Petalcorins act of pulling a gun from hiswaist despite the firing of a warning shot byArturo Caverte to stop Richard Alesna fromfurther stabbing the table inside the guardhouseclearly shows his intention to use his gun againsteither or both security guards Arturo Caverte andGenaro Busbos, thereby exposing their personsto actual and imminent danger. The fact thatNersas Petalcorin was not pursued anymoreupon his escape after he was hit on the wristclearly indicates that appellant Arturo Caverte didnot intend to kill but simply to defend himself fromthe expected attack. During the investigationwhich was conducted after he surrendered,Arturo Caverte narrated the same circumstancesbefore the police.Ncm

However, we do not reach the same conclusionwith respect to the killing of Richard Alesna byappellant Arturo Caverte. Having invoked self-defense, the burden was shifted on ArturoCaverte to prove by clear and convincingevidence that his victim was the aggressor and


20/26

that he did not initiate any sufficient provocation.The accused must rely on the strength of his ownevidence and not on the weakness of theprosecutions evidence the moment the accusedadmits the commission of the alleged criminal

act.[36]

From the abovequoted testimony of defensewitness Genaro Busbos, Richard Alesna wasalready running toward the staff house whenappellant Arturo Caverte still pursued and shothim at the back with his service shotgun. Thisaccount of Genaro Busbos is consistent with thefindings of Dra. Atup-Tan that Alesna suffered agunshot wound at the right posterior lumbarregion penetrating at the right anterior lumbar

region.[37]

Thus, while the initial aggression mayhave come from Alesna, Arturo Caverte was notjustified in shooting him at the back while thelatter was running away to the staff house for thereason that his person (Arturo Caverte) was nolonger exposed to any actual or imminentdanger. It is a doctrinal rule that when anunlawful aggression which has begun no longerexists, the one making a defense has no right tokill or even to wound the former aggressor.[38]

However, the crime committed by appellantArturo Caverte in Criminal Case No. 8126 ishomicide and not murder in view of the absenceof the qualifying circumstance of treachery. Thereis treachery when two conditions concur, to wit:(1) the employment of means of execution thatgives the person attacked no opportunity todefend himself or to retaliate; and (2) deliberateor conscious adoption of the means ofexecution.[39]Treachery exists where the attackwas perpetrated suddenly and withoutwarning.[40]It should be pointed out in the case atbench that Richard Alesna earlier threatenedappellant Arturo Caverte and Genaro Busbos bystabbing the table inside the guardhouse. Alesnacould have even succeeded in stabbing Busboshad the latter not been quick enough to parry theblow. Hence, the subsequent act of shootingAlesna by Arturo Caverte was not preconceivednor deliberately adopted but as held in a case, it

was just triggered by the sudden infuriation onthe part of the appellant because of theprovocation on the part of the victim.[41]Scncm

Likewise, conspiracy and abuse of superior

strength are not borne by the evidence on record.The only evidence that tends to link appellantTeofilo Caverte to the crime is the testimony ofGiovanni Petalcorin who testified that heallegedly saw appellant Teofilo Caverte insidethe canteen holding a knife. He also stated thatTeofilo Caverte subsequently stabbed RichardAlesna with the same knife. We disregard thetestimony of Giovanni Petalcorin for being highlyincredible. It has been established that thecanteen was closed during the incident.

Moreover, the Autopsy Report prepared by Dra.Atup-Tan clearly belies the presence of any stabwound on the body of the victim, Richard Alesna.Also, the ownership of the knife by RichardAlesna was established by the credible testimonyof Genaro Busbos which, in turn, was supportedby the testimony of the police officer whoinvestigated the case. SPO3 HermogenesCabanes testified that he recovered a knife and ascabbard during his investigation and he learnedthat the same "belonged to the enemy of theguard". Being an officer of the law, the unbiasedtestimony of SPO3 Cabanes bears the badge ofcredence and is entitled to high respect.

Additionally, note should be made that Giovanniwas a mere guest of his father, Engr. NersasPetalcorin, inside the compound of HanilDevelopment Company Ltd. Having stayed insidethe compound for a relatively short time, it is safeto assume that he mistook Genaro Busbos, whois admittedly the companion of appellant ArturoCaverte in the evening of the incident, forappellant Teofilo Caverte as the person whograppled with Richard Alesna for possession ofthe knife. In any event, Giovanni himself impliedlyadmitted his lack of familiarity with the otherpersons inside the Hanil compound.[42]

In view of the inconclusive and unreliableidentification by Giovanni Petalcorin, Teofilo
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn36http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn38http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn38http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn38http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn39http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn39http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn39http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn40http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn40http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn40http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn41http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn41http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn41http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn42http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn42http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn42http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn42http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn41http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn40http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn39http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn38http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn37http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn36


21/26

Cavertes defense of alibi assumes credence andimportance. While alibi is a weak defense andthe rule is that it must be proved to thesatisfaction of the court, the said rule is neverintended to change the burden of proof in

criminal cases, otherwise, we will see theabsurdity of an accused being put in a moredifficult position where the prosecutionsevidence is vague and weak as in the instantcase.[43]

WHEREFORE, the Decision of the Regional TrialCourt of Tagbilaran City, Branch 1, in CriminalCase No. 8126, for Murder, is hereby MODIFIED.Appellant Teofilo Caverte is ACQUITTED of thecrime of murder on the ground of reasonable

doubt while appellant Arturo Caverte isCONVICTED only of the crime of homicide withthe attendant mitigating circumstance ofvoluntary surrender. The imposable penalty onthe appellant Arturo Caverte, under Article 249 ofthe Revised Penal Code for homicide,is reclusion temporalin its minimum period.Applying the Indeterminate Sentence Law, thepenalty hereby imposed on appellant ArturoCaverte is the indeterminate penalty of twelve(12) years ofprision mayormaximum, asminimum, to fourteen (14) years and eight (8)months of reclusion temporalminimum, asmaximum; and to pay the heirs of the victim,Abdon Richard Alesna, the amount of P50,000.00 by way of civil indemnity ex delictoandP 50,000.00 as moral damages. Sdaamiso

Appellant Arturo Caverte is hereby ACQUITTEDin Criminal Case No. 8127 for the alleged crimeof Attempted Murder on the ground of selfdefense and as justified under Article 12(1) of theRevised Penal Code.

SO ORDERED.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs.JESUS SUMIBCAY yREPOLLO, accused-appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

This is an appeal from the decision[1]of theRegional Trial Court of

Urdaneta, Pangasinan, Branch47, in Criminal Case Nos. U-5638 and U-5639, convicting accused-appellant of the crimeof Murder and Attempted Murder.

On August 28, 1996, accused-appellant wascharged in three separate informations for thecrimes of Illegal Possession of Firearms, Murderand Attempted Murder. He was acquitted ofIllegal Possession of Firearms, but was convictedof murder and attempted murder under the

following informations:In Criminal Case No. U-5638, for Attempted

Murder:

That on or about the 6th day of November 1989,at brgy. Guiset Norte, municipality of SanManuel, province of Pangasinan, Philippines, andwithin the jurisdiction of this Honorable Court, theabove-named accused, being then armed with acal. 38 revolver (paltik), with intent to kill, withtreachery, evident premeditation and with the use

of superior strength, did then and there, wilfully,unlawfully and feloniously assault and shootFlordeliza Sampilo y Saballa, but missed, thusaccused has commenced the commission of thecrime of Murder directly by overt acts but did notperform all the acts of execution which shouldhave produced the felony by reason of somecause other than the spontaneous desistance ofthe accused, to the damage and prejudice of saidFlordeliza Sampilo.

CONTRARY to Article 248 in relation to Art. 6 ofthe Revised Penal Code.[2]

In Criminal Case No. U-5639, for Murder:

That on or about the 6th day of November 1989,at barangay Guiset Norte, municipality of SanManuel, province of Pangasinan, Philippines and
http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn43http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn43http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn43http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn2http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn1http://sc.judiciary.gov.ph/jurisprudence/2000/mar2000/123112.htm#_ftn43


22/26

within the jurisdiction of this Honorable Court, theabove-named accused, being then armed with anunlicensed Cal. 38 revolver (paltik), with intent tokill, with treachery, evident premeditation andwith the use of superior strength, did then and

there wilfully, unlawfully and feloniously assaultand shoot GLICERIO SAMPILO, inflicting uponhim the following injury: Gunshot wound1-Entrance, anterolateral aspect, lower 3rd, whichcaused his death, as a consequence, to thedamage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised PenalCode.[3]

Upon arraignment, accused-appellant

pleaded not guilty to the charges againsthim. Trial thereafter ensued.

The version of the prosecution runs thus: Inthe morning of November 5, 1989, FlordelizaSampilo, saw accused-appellant Jesus Sumibcaydigging in her backyard withoutpermission. When she confronted him, accused-appellant did not reply, but stoppeddigging. Later, in the afternoon, accused-appellant returned drunk and threatened to killFlordeliza, but she and her husband, Glicerio

Sampilo, ignored him.[4]

The next day, November 6, 1989, at around3:00 in the afternoon, accused-appellantsuddenly showed up holding a gun, five metersaway from the sari-saristore of the Sampilospouses. He cursed and threatened to killFlordeliza, who was then tending thestore. Accused-appellant shot her butmissed. Flordeliza hid at the back of therefrigerator and thereafter secured the safety oftheir youngest child, upon the instruction ofGlicerio.[5]

Outside the store, Glicerio slowlyapproached accused-appellant with his armsraised, saying No, I will not fight, Manong, I willnot fight.[6]As Glicerio advanced, accused-appellant backed off little by little, but kept thegun pointed at Glicerio. When Glicerio was

approximately two meters away from him,accused-appellant fired his gun hitting him on theneck. Thereafter, accused-appellant fled.[7]

The whole incident was witnessed byLynette De Leon, who was standing on the

roadside, fifteen meters away from the victim andaccused-appellant.[8]

Meanwhile, Glicerio was rushed to thehospital where he expired the followingday. Before he died, he revealed to theinvestigating police officers that it was accused-appellant who shot him.[9]

Dr. Felipe Tablada, the physician whooperated on Glicerio, testified that the victimsustained a single gunshot wound on the neck.

The bullet entered the right side of the neck,penetrating the upper part of the chest.[10]

Accused-appellant, on the other hand,claimed that the shooting of Glicerio was an actof self-defense, and that the firing of the gun atFlordeliza was accidental. The facts aspresented by the defense are asfollows: Sometime in October 1989, accused-appellant was working in his backyard, usingstones from the yard of his neighbors, the

spouses Glicerio and Flordeliza Sampilo. Henoticed a commotion and when the window of thecouples house opened, he realized that theywere arguing about the stones he was using. Heheard Flordeliza insulting him, thus, he attemptedto explain that Glicerio gave hispermission. However, Flordeliza signaled him toleave.[11]

At around 3:00 in the afternoon ofNovember 6, 1989, accused-appellant passed bythe sari-saristore of the spouses. When

Flordeliza saw accused-appellant, she hurledinsults at him. Accused-appellant confronted herand reiterated that Glicerio gave him permissionto use their stones in fixing the eroded portion ofhis lot. Flordeliza got angry and commandedGlicerio to get a gun and shoot accused-appellant. Moments later, Glicerio went out andpoked a gun on accused-appellant. He tried to
http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn3http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn11http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn10http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn9http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn8http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn7http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn6http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn5http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn4http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn3


23/26

pacify Glicerio but the latter was determined toshoot him. Hence, accused-appellant grabbedthe gun and tried to wrestle it away fromGlicerio. In the ensuing scuffle, the gun went offwhile directed towards Flordeliza. This prompted

Glicerio to comment, Look, one bullet waswasted, it costs very expensive.[12]When thegun again accidentally fired, Glicerio said, Yousee two bullets are already wasted, if you will notget me loose, Ill shoot you.[13]Determined tosave his life, accused-appellant twisted the guntowards Glicerios neck. It was at this instancewhen the gun went off, hitting Glicerio on theneck.[14]

On November 7, 1997, the trial courtrendered the assailed decision. The dispositive

portion thereof reads:

WHEREFORE, in view of all the foregoing,judgment is rendered as follows:

IN CRIMINAL CASE NO. U-5638

(1) Finding the accused GUILTYbeyond reasonable doubt of thecrime of ATTEMPTED MURDER,he is hereby sentenced to sufferimprisonment of FOUR YEARS,TWO MONTHS and ONE DAYofprision correccionalmaximumas minimum to TEN YEARS andONE DAY ofprision mayorasmaximum, applying theIndeterminate Sentence Law.

(2) Accused is hereby ordered to paythe complainant and victimFLORDELIZA SAMPILO the sumof FIVE THOUSAND (P5,000.00)

PESOS as an indemnity.


(1) Finding the accused GUILTYbeyond reasonable doubt of thecrime of MURDER, he is herebysentenced to suffer imprisonment

of RECLUSION PERPETUA, withall the accessory penalties providedby law.

(2) The accused is hereby ordered topay the heirs of the deceased

GLICERIO SAMPILO the sum ofFIFTY THOUSAND (50,000.00)PESOS as indemnity, moral andexemplary damages in the sum ofP50,000.00; consequentialdamages in the sum ofP58,500.00 and attorneys fees ofP10,000.00.

(3) Costs against the accused.


The accused is ACQUITTED of the crime ofILLEGAL POSSESSION OF FIREARM.

SO ORDERED.[15]

Hence, this appeal on the following grounds:

A.

THE TRIAL COURT GRAVELY

ERRED IN OVERLOOKING ANDDISREGARDING FACTS ANDCIRCUMSTANCES OF GREAT &SIGNIFICANT WEIGHT ANDIMPORTANCE WHICH, IFPROPERLY CONSIDERED, WOULDHAVE RESULTED TO (sic) THEACQUITTAL OF THE ACCUSED-APPELLANT.

B.

THE TRIAL COURT ERRED INDISREGARDING THE VERSION OFTHE DEFENSE WHICH IF TAKENTOGETHER, WOULD AFFECT THERESULT OF THE CASE IN FAVOROF THE ACCUSED-APPELLANT.
http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn12http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn15http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn14http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn13http://sc.judiciary.gov.ph/jurisprudence/2002/may2002/132130_31.htm#_edn12


24/26

C.

THE TRIAL COURT ERRED IN NOTACQUITTING ACCUSED-APPELLANT ON GROUNDS OF

REASONABLE DOUBT.[16]

Accused-appellants self-defense theory isunavailing. In alleging that the killing arose froman impulse to defend oneself, the onusprobandi rests upon accused-appellant to proveby clear and convincing evidence the followingelements: (a) that there was unlawful aggressionon the part of the victim; (b) that there wasreasonable necessity for the means employed toprevent or repel it; and, (c) that there was lack of

sufficient provocation on the part of thedefendant.[17]

In the case at bar, other than the self-serving testimony of accused-appellant, there isabsolutely no evidence on record that wouldshow that Glicerio attacked him. Likewise, theCourt is totally unconvinced that the firing uponFlordeliza was accidental. Indeed, the trial court,which had the unparalleled opportunity toobserve the demeanor of the witnesses as theytestify,[18]correctly sustained the version

presented by the prosecution. We extensivelyreviewed the testimony of the prosecutionwitnesses and found their declarations to bematerially corroborated, consistent andcredible. It is hard to believe that the prosecutioneyewitness, a disinterested party who was notshown to have been moved by improper motive,would perjure herself and falsely implicateaccused-appellant in the present case.[19]

Moreover, it appears that no powdertattooing or smudging were noted on theentrance wound sustained by Glicerio. Thisindicates that the gun must have been fired froma distance of more than two feet. As thedistance of the muzzle of the firearm increases,the burning, powder tattooing and smudginggradually diminish until (the same) disappear at adistance beyond twenty-four inches.[20]Verily,

this belies the claim of the defense that the gunwent

alberto garong

Documents