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FIRST DIVISION

NOTICE
Sirs/Mesdames:

Please take notice that the Court, First Division, issued a

Resolution dated March 4, 2019 which reads as follows:

"G.R. No. 230867 (People of the Philippines v. Genebie

Ragay)

This is an appeal by certiorari under Rule 45 of the 1997 Rules

of Court to reverse and set aside July 29, 2016 Decision 1 and February
10, 2017 Resolution2 of the Court of Appeals (CA), in CA-G.R. CR-
HC No. 01916, which affirmed with modification the June 23, 2014
Judgment3 of the Regional Trial Court of Dumaguete City, Branch 34
(RTC), finding Genebie Ragay (accused-appellant) guilty beyond
reasonable doubt of the crime of murder.

The Antecedents

On March 15, 2006, accused-appellant was charged with the

crime of murder in an Information dated February 24, 2006, 4 viz:
The undersigned Assistant Provincial Prosecutor accuses
GENEBIE RAGA Y of the crime of MURDER, committed as
follows:

That on or about December 6, 2005 in

Siaton, Negros Oriental, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused, with intent to kill and with
treachery, did, then and there, willfully, unlawfully
and feloniously, shoot one Roderick Jandog, with
the use of a handgun which accused was then armed

- over - twenty-two (22) pages ...

191
1 Rollo, pp. 9-24; penned by Associate Justice Marilyn B. Lagura-Yap, with Associate Justices
Gabriel T. Ingles and Geraldine C. Piel-Macaraig, concurring.
2 Id. at 26-29.
3
CA rol/o, pp. 28-40; penned by Judge Rosendo B. Bandai, Jr.
4
Records, Vol. I, pp. 2-3.

;\,,
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 RESOLUTION 2 G.R. No. 230867
March 4, 2019

and provided, thereby inflicting upon said victim

the following injuries, to wit:

. 1. Entrance wound scapular area (R) and

2. Exit wound anterior chest (L)

which wounds resulted to his death immediately

thereafter, to the damage and prejudice of the heirs
of said victim.

Contrary to law. 5

On May 31, 2006, accused-appellant was arraigned. He pleaded

"not guilty." 6

·Version of the Prosecution

The evidence for the prosecution rested mainly on the

testimonies of Daryl Antonio (Antonio), Dr. Edgar Y. Retuya (Dr.
Retuya), and Dorotea Jandog (Dorotea), as well as the following
documentary exhibits: Out Patient Record Card of Roderick A.
Jandog (Jandog) 7 and the Certificate of Death of Jandog. 8

Antonio, a nineteen (19) year-old student, testified that he and

Jandog were close friends. 9 On December 6, 2005, at about 2:30 in the
morning, Antonio, Jandog and Jandog's live-in partner, Messy Solis
(Solis), were in Siaton, Negros Oriental to attend the town fiesta. A
disco was being held at the gym. However, only Jandog and Solis
were allowed entry because Antonio was wearing short pants. Jandog
then decided to go to his grandmother's house to get long pants for
Antonio to wear. 10

On the way to his grandmother's house, they met accused-

appellant. He asked if he could borrow some long pants for Antonio to
use in the dance. Accused-appellant refused to lend him some pants
and instead offered marijuana to Jandog. Jandog refused to take the
marijuana. Accused-appellant got angry and said, "Ayaw pagsalig sa
imong lawas nga dako kay madutlan rana ug bala. " (Do not rely
much on your big body because it can be penetrated by a bullet). 11

- over -
191

5
Id. at 2.
6
Id. at 56.
7
Exhibit "A," folder of exhibits.
8
Exhibit "B," folder of exhibits.
9
CA ro/lo, p. 29.
io Id.
II Id.

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 RESOLUTION 3 G.R. No. 230867
March 4, 2019

They left accused-appellant and proceeded to the house of

Yuping Gadingan, Jandog's grandmother, where Jandog lent some
long pants to Antonio. Jandog and Antonio then returned to the gym,
but left Solis behind due to the late hour. 12

Inside the gym, they danced to a few songs. Later, Jandog felt
the call of nature and asked Antonio to accompany him to the place
where he could urinate. Jandog urinated on the wall beside the left
side of the stage. While he was urinating, accused-appellant, who
emerged from the dancing area, approached Jandog and suddenly
pulled out his gun and shot Jandog. Antonio was at the back of
Jandog, about three (3) meters away, when the shooting occurred. He
saw the gun used by accused-appellant and it appeared to him to be a
.45-caliber pistol. 13

Antonio panicked because of the shooting. He fled back to the

dancing area. Shortly, he went back to Jandog who was lying in a pool
of his own blood. Antonio asked for help from the people dancing in
the gym. Jandog was loaded in a multi-cab and brought to Lamberto
Macias Memorial Hospital. Jandog was pronounced dead on arrival
by Dr. Retuya. 14

Dr. Retuya testified that on December 6, 2005, at dawn, Jandog

was referred to him. He examined Jandog, took his blood pressure and
heart beat, but noticed that Jandog was no longer alive. He then
pronounced him dead on arrival. He noted that Jandog sustained a
gunshot wound on the right scapular area, which means on the right
side of his back, with an exit wound on his anterior chest. After the
examination, Jandog was packed and sent to the morgue. He did not
conduct an autopsy because he felt there was no need for the same and
the hospital had no such facility. 15

Dorotea, Jandog's mother, declared that she incurred expenses

for the wake and burial of her son. She presented documentary
evidence in support of the same. 16

Version of the Defense

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191

12 Id.
13 Id.
14 Id.
15
Id. at 29-30.
16
Id. at. 30.

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 RESOLUTION 4 G.R. No. 230867
March 4, 2019

The evidence of the defense mainly rested on the testimonies of

accused-appellant, Pel Namutcatcat 17 (Namutcatcat), Israel Dizon
(Dizon), Celso Futalan (Futalan), and Eugenio Elmido (Elmido).

Accused-appellant claimed that at about 9:00 in the evening of

December 5, 2005, he went to the gym to check if there were already
a lot of people. The gym was just across the street where his house
was located. When he saw that there were already some people in the
gym, he went home. On the way, he met his neighbor Harold Kinkito
(Kinkito) and Jandog. He invited them to join their group. On cross-
examination, he stated that was the only time he met and talked with
Jandog that night. However, when confronted with his counter-
affidavit where he stated that Jandog came back and was already
drunk, he said that he met Jandog once but not Kinkito. 18

At around 2:00 in the morning of December 6, 2005, accused-

appellant received a text message from a certain "Maning" inviting
him to go to the gym. He arrived at the gym around 3:00 in the
morning along with his friends Papa Dan, Julius Aliabo, Israel Dizon
and others. At this time, the gym no longer charged an entrance fee. 19

Accused-appellant, together with his companions, stayed on the

right side of the dance floor facing the stage. Namutcatcat was on his
left side while Papa Dan was on his right. They heard an explosion
from the other side of the stage, opposite where they sat. Due to the
loud music, no one inside the gym reacted to the explosion thinking it
was just one of the firecrackers. A few minutes later, a policeman
approached them and told them that a person was killed. They were
advised to go home. 20

His friends, Namutcatcat and Israel Dizon, both testified to the

effect that he was with them the entire time inside the gym, especially
when they heard the explosion. 21

Futalan, a former municipal watchman of the Municipality of

Siaton, Negros Oriental, testified that on December 6, 2005, at around
3:00 to 4:00 in the morning, he was guarding the gym where a dance
was being held. He was guarding the back of the stage where four

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191

17
Referred to as "Pel M. Namucatcat" in the RTC Decision and in the TSN; "Pell Miland
Namocatcat" in the affidavit, records, Vol. I, p. 34.
18
CA rollo, p. 33.
19 Id.
20 Id.
21
Id. at 31 & 32.

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 RESOLUTION 5 G.R. No. 230867
March 4, 2019

storage rooms were located containing materials to be used in the

municipality. He was positioned at a table near the wall behind the
stage. 22

While he was guarding the area, he saw the assailant pass him
by and shoot Jandog. Jandog was, at the time, urinating on the right
side of the stage wall. Futalan stated that he was about two and a half
(2Yi) meters away from the person who shot Jandog. He did not try
stopping the assailant because he only had a "batuta" (nightstick)
while the assailant had a gun. He said the assailant had previously
passed by him in the evening. The first time he passed by, he went out
through the front. The second time was when he shot Jandog. 23

Futalan claimed that the distance of the place where the

assailant shot Jandog and where he was sitting was about four (4)
meters. The area was well-lighted and he could see the face of the
assailant very well and it was not accused-appellant. He described the
assailant as tall, dark with spiky straight hair, and wearing a blue t-
shirt. He said he also saw accused-appellant that night in the area he
was guarding but he was not the one who shot J andog. 24

Futalan disclosed that he reported the incident only to police

officer Elmido, who was the team leader at the time. He did not report
it to the police station of Siaton. Two days later, he again reported to
the police officer who came to see him that he saw the face of the
assailant. He claimed that the assailant was from Siaton and that he
would see him play basketball while he was still a municipal
watchman. 25

Elmido stated that Futalan told him three (3) days after the
incident that he saw the face of the person who shot Jandog but he did
not know his name. He admitted during his cross-examination that he
was not there when the incident happened. He also admitted that
accused-appellant is the son of his relative. 26

The Ruling ofthe RTC

In its June 23, 2014 decision, the RTC found accused-appellant

guilty beyond reasonable doubt of murder and sentenced him to suffer
the penalty of reclusion perpetua. It ordered accused-appellant to

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191
22
Id. at 31.
23 Id.
24 Id.
2s Id.
26
Id. at 32.

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 RESOLUTION 6 G.R. No. 230867
March 4, 2019

indemnify the family of the victim the sum of Ninety Thousand Pesos
(P90,000.00) due to his untimely death. It also directed him to pay
actual damages in the amount of Sixty-One Thousand One Hundred
Forty-Five Pesos (P61,145.00), attorney's fees in the amount of
Twenty-Five Thousand Pesos (P25,000.00), and moral damages in the
amount of Fifty Thousand Pesos (PS0,000.00). 27

The RTC gave credence to the positive and consistent testimony

of eyewitness Antonio, that he actually saw accused-appellant
suddenly shoot Jandog while the latter was urinating at the side of the
gym. Antonio positively identified accused-appellant as the culprit. It
refused to give weight to the testimony of Futalan that it was another
person who committed the crime. It found that the falsity of Futalan's
testimony became very clear when he stated that the unknown
gunman and the victim were facing each other when the latter was
shot. His testimony was found inconsistent with the physical evidence
since the bullet wound sustained by the victim entered the back
portion of his body and exited in front. The physical evidence
indicated that the assailant was behind the victim when the shooting
occurred. It also gave scant consideration to the testimonies of the
other witnesses, considering that they were close relatives and friends
of accused-appellant. It held that their denial cannot overcome the
positive testimony of Antonio. The same held true for accused-
appellant' s defense of alibi. 28

The R TC also appreciated the presence of the qualifying

aggravating circumstance of treachery. It found that accused-appellant
suddenly, and without warning shot the defenseless victim in the back
while he was urinating. 29

Accused-appellant appealed the R TC decision before the CA.

The Ruling of the CA

In its July 29, 2016 decision, the CA denied his appeal and
affirmed the conviction by the RTC. It found the prosecution's
version of events more credible than that of the defense. It adopted
with approval the findings of the R TC concerning the testimony of
Futalan. It noted that Antonio had no motive to falsely testify against
accused-appellant. It affirmed the penalty imposed but modified the
damages awarded in accordance with People v. Jugueta 30 as follows:

- over -
191
27
Id. at 39.
28
Id. at 34-38.
29
Id. at 38-39.
30
783 Phil. 806(2016).

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 RESOLUTION 7 G.R. No. 230867
March 4, 2019

civil indemnity from P90,000.00 to P75,000.00 and moral damages

from P50,000.00 to P75,000.00. It further awarded exemplary
damages in the amount of P75,000.00 and affirmed the award of
actual damages in the amount of P61,145.00. It deleted the amount of
P25,000.00 awarded as attorney's fees on the ground that the trial
court had no basis to grant it. Lastly, it imposed interest at the rate of
6% on the damages awarded reckoned from the date of the finality of
the judgment until full payment thereof. 31

Accused-appellant moved for reconsideration of this decision,

which was denied by the CA in its February 10, 2017 Resolution. 32

Hence, this appeal.

First, accused-appellant argues that the CA erred in not

applying the equipoise rule in his favor. Considering that both
prosecution and defense produced an eyewitness to the incident, the
case is balanced. The Court, pursuant to the equipoise rule, should
decide in his favor. Second, he insists that the CA erred in convicting
him because the prosecution failed to prove that he is the culprit who
killed the victim. The testimony of Antonio is allegedly plagued with
inconsistencies. He points to the incredulity of a grown man
accompanying another to urinate and, that for such a good friend,
Antonio abandoned the victim after the shooting instead of rendering
assistance. Further, he alleges that the prosecution stumbled in
proving that the proximate cause of the victim's death was the
gunshot wound. Lastly, he contends that there is reasonable doubt that
he committed the crime of murder. He relies on the testimony of
Futalan that the man who shot the deceased was not him. The fact that
Futalan testified that the assailant and the victim were facing one
another, a matter inconsistent with the physical evidence, is of no
matter since what is important is that Futalan saw the gunman and
confirmed it was not the accused-appellant. In fact, he claims that this
minor inconsistency is a badge of truth. Also, he contends that
Futalan's testimony was corroborated by Elmido. 33

In its September 13, 2017 Comment,34 the Office of the

Solicitor General (OSG), on behalf of the People of the Philippines,
argued that the petition is devoid of merit because there is moral
certainty that the accused-appellant committed the crime of murder. It
points to Antonio's testimony identifying the accused".'appellant as the

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191

31
Rollo, pp. 17-23.
32
Supra note 2.
33
Rollo, pp. 41-47.
34
Id. at 91-101.

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 RESOLUTION 8 G.R. No. 230867
March 4, 2019

assailant. It argues that the accused-appellant's defense of denial

crumbles in the face of the positive identification made by Antonio. It
concludes that there is no reason to vacate the assailed decision as
there is no evidence that the courts a quo ignored, misconstrued or
misinterpreted cogent facts or circumstances which would warrant a
modification or reversal of the conviction. 35

In his September 14, 2018 Reply, 36 accused-appellant reiterates

that the testimony of Antonio is plagued with inconsistencies as
follows: (1) it is unbelievable that a full-grown man would ask
someone to accompany him while he urinates. This means that
Antonio was not present during the shooting incident and could not
have been an eyewitness; and (2) Antonio's abandonment of the
victim after the shooting is contrary to his claim that they are good
friends. Further, he insists that there is reasonable doubt as to whether
he committed the crime due to the testimony of Futalan. Futalan
testified that he saw the man who shot the deceased and accused-
appellant was not the one he saw. Further, Futalan stated that he saw
the person who shot the victim sometime in December 2007 while
watching a basketball game in Siaton. Accused-appellant was already
incarcerated at this time. He concludes that the Court should apply the
equipoise rule and resolve the case in his favor considering it is at a
stalemate, both the prosecution and the defense having presented an
alleged eyewitness.

ISSUE

WHETHER THE CA CORRECTLY UPHELD

ACCUSED-APPELLANT'S CONVICTION FOR THE
CRIME OF MURDER.

The Court's Ruling

The Court affirms the assailed CA decision as it correctly

upheld accused-appellant's conviction for the crime of murder.
Contrary to accused-appellant's assertions, the prosecution established
beyond reasonable doubt his culpability for the crime charged. His
contention that the equipoise rule should be applied in his favor is
unmeritorious because the evidence presented by the prosecution and
the defense were not equal. The prosecution, in addition to the
eyewitness account of Antonio, presented physical evidence
corroborating Antonio's testimony.

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191
35
Id. at 94-99.
36
Id. at 114-118.

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 RESOLUTION 9 G.R. No. 230867
March 4, 2019

Preliminarily, the Court notes that accused-appellant elevated

the matter before the Court through an appeal by certiorari. In the
appeal of criminal cases, the general rule is that it shall be brought to
the Court by filing an appeal by certiorari under Rule 45 of the Rules
of Court except when the CA imposes the penalty of "reclusion
perpetua, life imprisonment or a lesser penalty," 37 in which case the
appeal shall be made by mere notice of appeal filed before the CA. 38
Herein, accused-appellant clearly availed of the wrong mode of appeal
when he filed an appeal by certiorari despite having been sentenced
by the CA with the penalty of reclusion perpetua. Nonetheless, the
Court shall treat the instant petition as an ordinary appeal in the
interest of substantial justice so as to resolve the substantive issues at
hand with finality. 39

It is well-established that "in criminal cases, an appeal throws

the entire case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or even
reverse the trial court's decision based on grounds other than those
that the parties raised as errors. The appeal confers the appellate court
full jurisdiction over the case and renders such court competent to
examine records, revise the judgment appealed from, increase the
penalty, and cite the proper provision of the penal law." 40

The elements for the crime of murder under Article 248 41 of the
Revised Penal Code (RPC) are as follows: "(1) that a person was
killed; (2) that the accused killed him or her; (3) that the killing was
attended by any of the qualifying circumstances mentioned in Article
248; and (4) that the killing is not parricide or infanticide." 42

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191
37
Ramos, et al. v. People, 803 Phil. 775, 782 (2017).
38 Id.
39
Id. at 782-783.
40
Id. at 783.
41
Art. 248. Murder. -Any person who, not falling within the provisions of Article 246, shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua, to death, if
committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed
men, or employing means to weaken 'the defense or of means or persons to
insure or afford impunity.
2. In consideration of a ·price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon railroad, fall of an airship, by means of motor
vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph,
or 'of an earthquake, eruption of a volcano, destructive cyclone, epidemic or
other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the
victim, or outraging or scoffing at his person or corpse.
42
People v. Lagman, 685 Phil. 733, 743 (2012); citing People v. Gabrino, 660 Phil. 485, 495
(2011 ); and People v. Dela Cruz, 626 Phil. 631, 639 (20 I 0).

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 RESOLUTION 10 G.R. No. 230867
March 4, 2019

In the instant case, the prosecution established beyond

reasonable doubt the presence of all the elements of murder under
Article 248.

First: The prosecution

established that the victim was
killed

The prosecution established the fact of the victim's death

through the presentation of his Certificate of Death. 43 This was
prepared by Dr. Retuya, who conducted the post-mortem examination
on the victim. The said document certified that Jandog was dead on
arrival at Cong. Lamberto L. Macias Memorial Hospital, Siaton,
Negros Oriental on December 6, 2005.

Second: The prosecution

established the identity of
accused-appellant as the
perpetrator of the crime
charged

Accused-appellant's identity as the perpetrator of the crime was

established beyond reasonable doubt by the testimony of Antonio and
the physical evidence corroborating the same.

Antonio's eyewitness testimony identified accused-appellant as

the perpetrator of the crime. He clearly stated that he saw accused-
appellant shoot the victim from the back, coming from his right side.
The pertinent excerpts from his testimony are as follows:

ATTY. LLOSA (TO THE WITNESS):

Q: So, you were requested by Roderick Jandog to
accompany him when he urinates. Now, were you
able to accompany him?
A: Yes.

Q: Where did Roderick Jandog urinate?

A: At the side of the stage.

COURT (TO THE WITNESS):

Q: Beside the stage there is a comfort room for
comforting oneself?
A: None.

Q: So, you just went to the side of the stage for

Roderick to urinate himself?
A: Yes.
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191
43
Supra note 7.

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RESOLUTION 11 G.R. No. 230867
March 4, 2019

ATTY. LLOSA (TO THE WITNESS):

Q: Was he able to urinate?
A: While he was urinating, Genebie Ragay suddenly
approached him.

Q: What happened next when Genebie Ragay

approached Roderick Jandog while urinating?
A: Genebie Ragay suddenly pulled out a gun and
immediately shoot Roderick Jandog.

Q: How far were you at the scene of this incident when

Genebie Ragay shot Roderick Jandog while
urinating?

ACTING INTERPRETER:
Witness pointing to the wall which is,
ATTY. LLOSA:
3 meters, more or less.

COURT (TO THE WITNESS):

Q: His back was facing you?
A: His back was facing at me.

Q: From where did Genebie Ragay come from?

A: I do not know where he came from. It was very
sudden.

Q: But do you know if he came from the front of

Roderick, or from the back, or from the side?
A: He was passing by the side of Roderick.

ATTY. LLOSA (TO THE WITNESS):

Q: In what side of Roderick was Genebie Ragay
positioned?
A: Right side.

Q: Now, after shooting Roderick Jandog, what

happened to Roderick Jandog?
A: He stumbled down.

xx xx

Q: Now, you told the Court that you saw Genebie

Ragay shot Roderick Jandog. Was Roderick Jandog
hit?
A: Yes.

COURT (TO THE WITNESS):

Q: How did you know that he was hit?
A: I saw him shot Roderick.

Q: Did you hear a gunfire at that time?

A: Yes, I heard.

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191

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 RESOLUTION 12 G.R. No. 230867
March 4, 2019

Q: Did you see the gun used in shooting Roderick?

A: I saw.

Q: Can you describe the gun?

A: Yes.

Q: Try to describe it to the Court.

A: It's like a form of 45.

Q: So, you have seen a 45 caliber pistol?

A: Yes, like the one used by the police. 44 (emphasis
supplied)

In contrast, Futalan testified that the assailant and the victim

were facing one another when the assailant shot the victim:
ATTY. BEJAR:
Q: Mr. Witness, could you kindly tell this Honorable
Court what was the distance between the assailant
and the person who was shot at that time of the
shooting in your estimate?
A: My estimate is one-half meter only there was a reel
in between the person who was the assailant on the
top of the stage and the person shot who was
urinating.

COURT:
Q: They were facing each other?
A: Yes, Your Honor, the person who shot was at the
top of the stage and he drew his weapon in front of
me and he shot the person urinating at the back of
the stage. 45

Futalan repeated this during the continuation of his direct

testimony, as follows:

COURT (TO WITNESS):

Q: You saw the person being shot?
A: Yes, I saw, Your Honor.

Q: He was urinating?
A: He was urinating, he was standing there.

Q: He was facing you?

A: Yes, Your Honor he was facing.

Q: And the person who shot the person urinating was

also facing him, right?
A: He was facing him, Your Honor.

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191
44
TSN, September 13, 2006, pp. 13-16.
45
TSN, March 5, 2008, p. 7.

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 RESOLUTION 13 G.R. No. 230867
March 4, 2019

Q: So he shot him in front?

A: Yes.

Q: And he was hit in front?

A: Yes, he was hit in front.

Q: You saw that he was hit by that shot in front of the

person who shot him, you are sure of that?
A: When he was shot, I did not know where he was
shot, but the thing is when the victim was shot, he
just dropped and shouted, "buang, buang" ("crazy,
crazy").

Q: But they were facing each other when you heard the
shot, because you said you did not see anymore
when he was hit. You change your statement? You
said a while ago that you saw him shot the person,
right?
A: I saw it.

Q: So they were facing each other?

A: Yes, Your Honor.

Q: So he was hit in front of his body, that's what you

are saying?
A: I do not know where he was hit, Your Honor but
maybe in front because he was facing [ ... ] Your
Honor.

Q. But they were facing each other when that person

was shot by the person who came from the back of
the stage?
A. Yes, they were facing each other. 46

Antonio's testimony is more credible than that of Futalan. This

is because Antonio's testimony as to accused-appellant's position in
relation to the victim during the shooting is corroborated by the
physical evidence presented.

The Out Patient Record Card, prepared by Dr. Retuya, 47

expressly provides that the victim was "Pronounced Dead on
Arrival" 48 with the following diagnosis:

Gunshot Wound; Thru & Thru

Entrance Wound = Scapular Area, (R)
Exit Wound= Anterior Chest, (L) 49

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191

46
TSN, April 10, 2008, pp. 9-10.
47
Supra note 7.
4s Id.
49 Id.

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 RESOLUTION 14 G.R. No. 230867
March 4, 2019

This is echoed by the victim's Certificate of Death. 50 The said

certificate provides, under causes of death, that the victim died of a
"Gunshot Wound; Thru & Thru. Entrance Wound = Scapular Area,
(R), Exit Wound= Anterior Chest, (L)." 51

Finally, Dr. Retuya testified in the same vein:

PROS.AGAN:

xx xx

Q: In this record card docketed as Case 22107 it is

indicated that the entrance wound is in the scapular
area, can you point the part of your body Doctor
that will tell us where the scapular area is which
was the entrance wound.
A: Scapular area is situated at the back at the right side.

INTERPRETER:
Witness pointing at his back right side.

PROS.AGAN:
Q: To be more exact Doctor, let us use the interpreter
as model and kindly touch that particular area which
you say is the scapular area and which was the
entrance wound.
A: This is the scapular area the right.

PROS. AGAN:
Witness is indicating both the right and the left scapular
area and said that the injury which is identified as the
entrance wound is located below the right scapular area
which is about eight (8) inches.

COURT:
Depending on the person, the deceased could probably [be]
tall.

PROS.AGAN:
At any rate[,] at the back right portion.

COURT:
Noted.

PROS.AGAN:
Q: You also indicated in this record card the exit
wound is at the anterior chest left, can you show us
thru your body Doctor the location of this exit
wound?
A: Here in the left chest.
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191
50
Supra note 8.
51
Id.; Exhibit "B-2," folder of exhibits.

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 RESOLUTION 15 G.R. No. 230867
March 4, 2019

PROS.AGAN:
Witness is touching his left chest, thank you Doctor. 52

It is clear that the identity of accused-appellant as the assailant

was established by the prosecution through his positive identification
by Antonio, as corroborated by the physical evidence. There is no
showing that Antonio was impelled by evil motive to implicate
accused-appellant.

At this juncture, the Court deems it prudent to address the

arguments raised by the defense.

Contrary to accused-appellant's contention, the equipoise rule

cannot be applied in the instant case.

The Court has previously stated that "[u]nder the equipoise

rule, where the evidence on an issue of fact is in equipoise, or there is
doubt on which side the evidence preponderates, the party having the
burden of proof loses. The equipoise rule finds application if the
inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the
accused and the other consistent with his guilt, for then the evidence
does not suffice to produce a conviction." 53 "Briefly stated, the needed
quantum of proof to convict the accused of the crime charged is found
lacking." 54

The equipoise rule applies only in instances when there is doubt

on which side the evidence preponderates. It does not apply in cases
where the prosecution established beyond reasonable doubt the guilt
of the accused-appellant, as in this case.

It is true that both sides presented conflicting versions of

events. In support of their versions, each side presented an alleged
eyewitness to the crime. However, this is where the similarities end
between the evidence presented by the prosecution and that presented
by the defense. The evidence preponderates in favor of the
prosecution on account of the physical evidence corroborating
Antonio's testimony. As discussed above, Antonio testified that
accused-appellant shot the victim from behind, coming from his right
side. This matches the physical evidence, which shows that the victim
was shot from the back. The entrance wound is on the victim's right
scapular area, or his right back side, while the exit wound is on the
victim's left chest area.
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191
52 TSN, September 27, 2006, pp. 6-8.
53
People v. CA, et al., 640 Phil. 396, 414-415 (2010).
54
Tin v. People, 415 Phil. 1, 12 (2001).

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 RESOLUTION 16 G.R. No. 230867
March 4, 2019

In tum, the physical evidence cast serious doubts on the truth of

Futalan's testimony. He was questioned several times by the RTC on
the position of the alleged assailant he saw vis-a-vis the victim during
the shooting. He repeatedly answered that the assailant and the victim
were facing one another during the shooting. This is inconsistent with
the physical evidence. Again, the entry wound was found on the
victim's right back side. Accordingly, Futalan's testimony cannot be
given any credence.

This inconsistency is not minor, as the defense argues. This

inconsistency is material in determining the truth or falsity of
Futalan's testimony. Further, the fact that Futalan's testimony was
corroborated by Elmido is of no moment. Elmido only testified that
Futalan told him he saw the person who shot the victim, that the face
was clear but that he did not know the name of that person. 55 He did
not corroborate Futalan's testimony as to its material points: who
actually shot the victim and whether they were face to face. Besides,
their testimonies cannot overcome the strength of Antonio's testimony
as corroborated by the physical evidence. On this basis, the Court
finds that the evidence preponderates in favor of the prosecution.

The Court reiterates that "[t]he equipoise rule is applicable only

where the evidence of the prosecution and the defense are so evenly
balanced as to call for the tilting of the scales in favor of the accused
who is presumed innocent under the Bill of Rights. The rule is not
applicable here because there is no equipoise. The evidence of the
prosecution is heavier than that of the defense and has overcome the
constitutional presumption of innocence in favor of the [accused-
]appellant. " 56

With regard the supposed inconsistencies in Antonio's

testimony, the Court finds the same to be unworthy of consideration.
Accused-appellant's argument concerning the unbelievable quality of
a full grown man asking another to accompany him to urinate is belied
by the fact that the victim had reason to do so. Antonio testified that
the accused-appellant threatened the victim when he refused to accept
the marijuana being offered to him. The pertinent excerpt from
Antonio's testimony is as follows:

ATTY. LLOSA (TO THE WITNESS):

xx xx

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191

55
TSN, January 9, 2009, p. 6.
56
People v. Ramil/a, 298 Phil. 372, 377 (1993).

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 RESOLUTION 17 G.R. No. 230867
March 4, 2019

Q: So you stopped at Genebie's house?

A: Yes.

Q: Now, what did you do there?

A: Roderick Jandog approached Genebie Ragay and
informed him that he will borrow a long pants for
the use of Daryl Antonio and Genebie Ragay
refused to lend a long pants and instead offered [a]
marijuana.

Q: Now, when Genebie Ragay offered marijuana to

Roderick Jandog, what was the reaction of Roderick
Jandog?
A: Roderick Jandog refused.

xx xx

Q: I will go back to my previous question. What did

Genebie Ragay do when Roderick Jandog refused
the offer of marijuana?
A: When Roderick Jandog refused to accept the offer
of Genebie, Genebie Ragay got angry and uttered
words in the vernacular, "Ayaw pagsalig sa imong
lawas nga dako kay madutlan rana ug bala (Do not
rely much on your big body because it can be
penetrated with a bullet. " 57

Due to this threat, the victim asked Antonio to accompany him

while he urinated. Antonio testified in this wise:

ATTY. BEJAR (to witness):

Q: And so in other words, Mr. Witness, from the time
Roderick Jandog started urinating, up to the time of
the incident, you were just looking at his back, am I
correct?
A: Yes, I was looking at him.

Q: And you did not look at any other place during this
duration except the back of Roderick Jandog, am I
correct?
A: Yes, I was waiting for him to finish urinating.

COURT (to witness):

Q: Again, why were you facing the back of Roderick
Jandog?
A: Because we were afraid when we received the death
threat, that's why my attention was on Roderick.

Q: Your purpose of watching is to find out whether he

will be attacked?
A: No, I was just watching him.
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191

57
TSN, September 13, 2006, pp. 7-9.

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 RESOLUTION 18 G.R. No. 230867
March 4, 2019

Q: Meaning, you are watching him for his safety?

A: Yes.

Q: That's your purpose?

A: Yes, I was watching him because of the death threat. 58

Clearly, there was good reason why Antonio. accompanied the

victim while he urinated.

Also underserving of consideration is accused-appellant's

contention that Antonio's abandonment of the victim after the
shooting is contrary to his claim of them being good friends. As
testified by Antonio, his fear caused him to run away after the
shooting. 59

The identity of accused-appellant as the assailant was

established beyond reasonable doubt by the prosecution.

Third: The prosecution

established the presence of the
qualifying circumstance of
treachery

The prosecution also established that treachery attended the

killing. There is treachery when the offender commits any of the
crimes against the person, employing means, methods, or forms in the
execution thereof, which tend directly and specially to ensure its
execution, without risk to himself arising from the defense which the
offended party might make. 60 Here, the prosecution established that
the victim was shot in the back by accused-appellant, rendering him
helpless and unable to defend himself from his assailant. Treachery
indeed attended the killing.

Fourth: The killing is not

parricide or infanticide

The last element that the killing be not parricide or infanticide

is also present. There is no allegation that accused-appellant and the
victim are related to one another.

On the basis of the foregoing, the Court finds that the guilt of
the accused-appellant for the crime of murder against Jandog was
established beyond reasonable doubt by the prosecution.

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191
58
TSN, October 19, 2006, pp. 23-24.
59
Id. at 25.
60
Cirera v. People, 739 Phil. 25, 44 (2014); REVISED PENAL CODE, Art. 14(16).

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RESOLUTION 19 G.R. No. 230867

March 4, 2019

Penalty Imposed and Damages

Awarded

The penalty of reclusion perpetua is affirmed.

Art. 248 of the RPC states:

Art. 248. Murder. - Any person who, not falling within the
provisions of Article 246, shall kill another, shall be guilty
of murder and shall be punished by reclusion perpetua, to
death if committed with any of the following attendant
circumstances:

1. With treachery xxx

The penalty for the crime of murder is reclusion perpetua to

61
death. These two penalties are indivisible. Since neither mitigating
nor aggravating circumstances are present, the lesser of the two
penalties, which is reclusion perpetua, shall be applied. 62 Pursuant to
Section 363 of Republic Act (R.A.) No. 9346, 64 accused-appellant shall
not be eligible for parole under Act No. 4103. 65

The Court also affirms the award of civil indemnity, moral

damages, and exemplary damages in the amount of Seventy-Five
Thousand Pesos (P75,000.00) each.

However, the Court deems it proper to delete the award of

actual damages in the amount of Sixty-One Thousand One Hundred
Forty-Five Pesos (P61,145.00) and to instead award temperate
damages in the amount of Fifty Thousand Pesos (PS0,000.00)
pursuant to People v. Jugueta66 and People v. Racal. 67

The prosecution presented the following documentary evidence

in support of their claim of actual damages:

1. Siaton Funeral Homes Official Receipt No. 0037, dated

October 16, 2006, in the amount of P28,000.00; 68

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191

61
REVISED PENAL CODE, Art. 248.
62
REVISED PENAL CODE, Art. 63, second paragraph.
63
SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for
parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
64
Anti-Death Penalty Law.
65
Indeterminate Sentence Law.
66
Supra note 30.
67 G.R. No. 224886, September 4, 2017, 838 SCRA 476.
68
Exhibit "D," folder of exhibits.

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 ,.
RESOLUTION 20 G.R. No. 230867
March 4, 2019

2. Recibo, dated December 7, 2005, in the amount of

Pl 0,000.00; 69 and

3. Summary of Expenses for the tomb, tombstone, and

others duly signed by Romeo M. Ege, in the amount of
Pl 1, 125.00. 70

As may be observed, the documentary evidence presented by

the prosecution only supports an award of actual damages in the
amount of Forty-Nine Thousand One Hundred Twenty-Five Pesos
(P49,125.00). Hence, it is improper to affirm the award of actual
damages in the amount of P61,145.00.

In People v. Racal, 71 the Court stated that "x x x when actual

damages proven by receipts during the trial amount to less than the
sum allowed by the Court as temperate damages, the award of
temperate damages is justified in lieu of actual damages which is of a
lesser amount. Conversely, if the amount of actual damages proven
exceeds, then temperate damages may no longer be awarded; actual
damages based on the receipts presented during trial should instead be
granted. The rationale for this rule is that it would be anomalous and
unfair for the victim's heirs, who tried and succeeded in presenting
receipts and other evidence to prove actual damages, to receive an
amount which is less than that given as temperate damages to those
who are not able to present any evidence at all." 72

Prevailing jurisprudence fixes the amount of P50,000.00 as

temperate damages in murder cases. 73 Since the amount actually
proven by the prosecution is only P49,125.00, less than the sum of
temperate damages allowed by the Court, it is proper to delete the
award of actual damages and instead award temperate damages of
P50,000.00.

WHEREFORE, the July 29, 2016 Decision and February 10,

2017 Resolution of the Court of Appeals, in CA-G.R. CR-HC No.
01916 is AFFIRMED with MODIFICATIONS.

Accused-appellant Genebie Ragay is found GUILTY beyond

reasonable doubt of the crime of murder punishable under Article 248
of the Revised Penal Code. He is SENTENCED to suffer the penalty

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191
69
Exhibit "D-1," folder of exhibits.
70
Exhibit "D-2," folder of exhibits.
71
Supra note 67.
72
Id. at 498.
73
Supra note 30.

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RESOLUTION 21 G.R. No. 230867
March 4, 2019

of reclusion perpetua. Further, he is ORDERED to pay civil

indemnity in the amount of P75,000.00, moral damages in the amount
of P75,000.00, exemplary damages in the amount of P75,000.00, and
temperate damages in the amount of PS0,000.00. Interest rate of 6%
per annum shall be imposed on all damages awarded from the finality
of this judgment until fully paid.

The profuse apology and compliance of Atty. Richard M.

Catacutan, counsel for accused-appellant, with the Show Cause
Resolution dated June 27, 2018, stating that he believed in good faith
that after the lapse of the period given by the Court to file a reply, the
case shall be submitted for resolution, and admitting that he
committed an error in judgment but assures the Court that he has now
learned his lesson, with attached reply to the Office of the Solicitor
General's comment on the petition for review on certiorari; the
accused-appellant's reply to the Office of the Solicitor General's
comment on the petition for review on certiorari, in compliance with
the Resolution dated November 8, 2017; and the letter dated
November 22, 2018 of Mr. Mario C. Agura, Chief, Archives Unit,
Court of Appeals, Cebu City, in compliance with the Resolution dated
September 26, 2018, transmitting the Court of Appeals rollo of CA
G.R. CR HC No. 01916 consisting of 192 pages, two (2) folders of
Regional Trial Court original records, one ( 1) folder of exhibits, three
(3) folders of table of contents, information, resolution, etc., one (1)
folder of original transcript of stenographic notes and three (3) folders
of duplicate transcript of stenographic notes, are all NOTED.

SO ORDERED."

Very truly yours,

LIBRAm{""C. BUENA
Clerk of Col!Q:
6'191

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RESOLUTION 22 G.R. No. 230867

'
March 4, 2019

The Solicitor General Court of Appeals

134 Amorsolo Street, Legaspi Village 6000 Cebu City
1229 Makati City (CA-G.R. CR HC No. 01916)

The Hon. Presiding Judge

Regional Trial Court, Branch 34
Dumaguete City, 6200 Negros Oriental
(Crim. Case No. 2006-18052)

Atty. Richard M. Catacutan

Counsel for Accused-Appellant
Unit 410 Portal West Building
Siliman Avenue, Dumaguete City
6200 Negros Oriental

Mr. Genebie Ragay

Accused-Appellant
c/o The Director General
Bureau of Corrections
1770 Muntinlupa City

The Director General

Bureau of Corrections
1770 Muntinlupa City

Public Information Office (x)

Library Services (x)
Supreme Court
(For uploading pursuant to A.M.
No. 12-7-1-SC)

Judgment Division (x)

Supreme Court

191
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