G.R. No. 150647             September 29, 2004 municipality in December 1989.
municipality in December 1989. With the arrest effected, Balboa
ROWENO POMOY, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
Well-established is the principle that the factual findings of the trial court,
when affirmed by the Court of Appeals, are binding on the highest court of
the land. However, when facts are misinterpreted and the innocence of the
accused depends on a proper appreciation of the factual conclusions, the
Supreme Court may conduct a review thereof. In the present case, a careful
reexamination convinces this Court that an "accident" caused the victim’s
death. At the very least, the testimonies of the credible witnesses create a
reasonable doubt on appellant’s guilt. Hence, the Court must uphold the
constitutional presumption of innocence.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court,
seeking to set aside the February 28, 2001 Decision 2 and the October 30,
2001 Resolution3 of the Court of Appeals (CA) in CA–GR CR No. 18759. The
CA affirmed, with modifications, the March 8, 1995 judgment 4 of the
Regional Trial Court (RTC)5 of Iloilo City (Branch 25) in Criminal Case No.
36921, finding Roweno Pomoy guilty of the crime of homicide. The assailed
CA Decision disposed as follows:
"WHEREFORE, premises considered, MODIFIED as to penalty in
the sense that the [Petitioner] ROWENO POMOY is sentenced to
suffer an indeterminate prison term of six (6) years, four (4)
months and ten (10) days of prision mayor minimum, as
minimum, to fourteen (14) years eight (8) months and twenty
(20) days of reclusion temporal medium, as maximum, the
decision appealed from is hereby AFFIRMED in all other
respects."6
The challenged CA Resolution denied petitioner’s Motion for
Reconsideration.
Petitioner was charged in an Information worded thus:
"That on or about the 4th day of January 1990, in the
Municipality of Sara, Province of Iloilo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused, armed with his .45 service pistol, with deliberate intent
and decided purpose to kill, and without any justifiable cause or
motive, did then and there willfully, unlawfully and feloniously
assault, attack and shoot one TOMAS BALBOA with the service
pistol he was then provided, inflicting upon the latter gunshot
wounds on the vital parts of his body, which directly caused the
death of said victim thereafter."7
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presented respondent’s version of
the facts as follows:
"Tomas Balboa was a master teacher of the Concepcion College
of Science and Fisheries in Concepcion, Iloilo.
"On January 4, 1990, about 7:30 in the morning, some
policemen arrived at the Concepcion College to arrest Balboa,
allegedly in connection with a robbery which took place in the
ENTRANCE, ovaloid, oriented medially downwards,
and the policemen passed by the Concepcion Elementary School
where his wife, Jessica, was in a get-together party with other
School Administrators. When his wife asked him, ‘Why will you
be arrested?’ [H]e answered ‘[Even I] do not know why I am
arrested. That is why I am even going there in order to find out
the reason for my arrest.’
"Balboa was taken to the Headquarters of the already defunct
321st Philippine Constabulary Company at Camp Jalandoni, Sara,
Iloilo. He was detained in the jail thereat, along with Edgar
Samudio, another suspect in the robbery case.
"Later that day, about a little past 2 o’clock in the afternoon,
petitioner, who is a police sergeant, went near the door of the
jail where Balboa was detained and directed the latter to come
out, purportedly for tactical interrogation at the investigation
room, as he told Balboa: ‘Let’s go to the investigation room.’ The
investigation room is at the main building of the compound
where the jail is located. The jail guard on duty, Nicostrado
Estepar, opened the jail door and walked towards the
investigation room.
"At that time, petitioner had a gun, a .45 caliber pistol, tucked in
a holster which was hanging by the side of his belt. The gun was
fully embedded in its holster, with only the handle of the gun
protruding from the holster.
"When petitioner and Balboa reached the main building and
were near the investigation room, two (2) gunshots were heard.
When the source of the shots was verified, petitioner was seen
still holding a .45 caliber pistol, facing Balboa, who was lying in a
pool of blood, about two (2) feet away. When the Commanding
Officer of the Headquarters arrived, he disarmed petitioner and
directed that Balboa be brought to the hospital. Dr. Palma (first
name not provided) happened to be at the crime scene as he
was visiting his brother in the Philippine Constabulary. When Dr.
Palma examined Balboa, he (Dr. Palma) said that it was
unnecessary to bring Balboa to the hospital for he was dead.
"Upon the request of Mrs. Jessica Balboa, the wife of the
deceased, Dr. Ricardo Jabonete, the medico-legal officer of the
National Bureau of Investigation, Region VI, Iloilo City,
conducted an autopsy on the remains of Tomas Balboa. The
following were his findings:
‘Pallor, integumens and nailbeds.
‘Wound, gunshot: (1) ENTRANCE, downwards and
medially, edges, modified by sutures, surrounded by
abrasion collar, 0.6 cm. In its chest, left side, 10.0
cms. from anterior midline, 121.0 cms. From left heel,
directed medially backwards from left to right,
penetrating chest wall thru 5th intercostals space
into thoracic cavity, perforating thru and thru, upper
lobe, left lung, lacerating left ventricular wall causing
punched out fracture, 8th thoracic vertebra and
make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges,
modified by sutures, back, right side, 8.0 cms. From
posterior midline, 117.0 cms. From right heel (2)
edges sutured, 0.7 cm. on its widest portion, at
infero-medial border, hypochondriac region, left side,
4.0 cms. From anterior midline, 105.0 cms. From left
heel, directed backwards, laterally wall into
penetrating abdominal cavity, perforating thru and
thru, stomach, head of the pancreas and mesentery,
make an exit, ovalid, 1.0 x 0.8 cm., oriented medially
upwards, edges, sutured, back, left side, level of 9th
intercostal space, 4.5 cms. From posterior midline,
110.0 cms. From left heel. x x x.
‘CAUSE OF DEATH: Hemorrhage, massive secondary
to gunshot wounds on chest and abdomen.
‘REMARKS: Body previously embalmed and
autopsied.’
"Dr. Jaboneta testified that the two (2) wounds he found on x x x
Balboa’s body were gunshot wounds. The entrance of [W]ound
No. 1 was to the left side of the chest about the left nipple and
exited to the right side of the back. Its trajectory was backwards
then downwards from left to right. As to the possible position of
the assailant, Dr. Jaboneta opined that the nozzle of the gun was
probably in front of the victim and was more to the left side, and
the gun must have been a little bit higher than the entrance
wound. Wound No. 2 was located immediately below the arch of
the ribs, left side. Its direction was backwards and laterally
upwards. Dr. Jaboneta estimated that when it was inflicted, the
assailant must have pointed the gun’s nozzle to the right side
front of the victim. The distance between the entrance points of
wounds No. 1 and No. 2 was found to be about 16.0
centimeters."8
Version of the Defense
The Petition adopted the narration of facts in the assailed CA Decision,
which in turn culled them from the trial court. The RTC summarized the
testimonies of Defense Witnesses Erna Basa, the lone eyewitness to the
incident; Eden Legaspi; Dr. Salvador Mallo Jr.; and petitioner himself, as
follows:
"Erna Basa:
"x x x [O]n January 4, 1990, she was working in their office in the
camp up to the afternoon; at about past 2 o’clock that afternoon
while working on the backlogs, she heard some noise and
exchange of words which were not clear, but it seemed there
was growing trouble; she opened the door to verify and saw
Roweno Pomoy and Tomas Balboa grappling for the possession
of the gun; she was inside the room and one meter away from
the door; Pomoy and Balboa while grappling were two to three
meters away from the door; the grappling happened so fast and
the gun of Pomoy was suddenly pulled out from its holster and
then there was explosion; she was not certain who pulled the
gun. x x x.
"Eden Legaspi:
"x x x [A]s early as 1:30 o’clock in the afternoon of January 4,
1990 she was inside the investigation room of the PC at Camp
Jalandoni, Sara, Iloilo; at about 2 o’clock that same afternoon
while there inside, she heard a commotion outside and she
remained seated on the bench; when the commotion started
they were seated on the bench and after the commotion that
woman soldier (referring to Erna Basa) stood up and opened the
door and she saw two persons grappling for the possession of a
gun and immediately two successive shots rang out; she did not
leave the place where she was seated but she just stood up;
after the shots, one of the two men fall down x x x.
"Accused-petitioner Roweno Pomoy:
"He is 30 years old and a PNP member of the Iloilo Provincial
Mobile Force Company then attached to the defunct 321st PC
Company; he was one of the investigators of their outfit; about 2
o’clock or past that time of January 4, 1990 he got Tomas Balboa
from their stockade for tactical interrogation; as he was already
holding the door knob of their investigation room and about to
open and enter it, all of a sudden he saw Tomas Balboa
approach him and take hold or grab the handle of his gun;
Tomas Balboa was a suspect in a robbery case who was
apprehended by the police of Concepcion and then turned over
to them (PC) and placed in their stockade; he asked the sergeant
of the guard to let Balboa out of the stockade for interrogation;
from the stockade with Balboa walking with him, he had his .45
caliber pistol placed in his holster attached to his belt on his
waist; then as he was holding the doorknob with his right hand
to open the door, the victim, who was two meters away from
him, suddenly approached him and grabbed his gun, but all of a
sudden he held the handle of his gun with his left hand; he
released his right hand from the doorknob and, with that right
hand, he held the handle of his gun; Tomas Balboa was not able
to take actual hold of the gun because of his efforts in
preventing him (Balboa) from holding the handle of his gun; he
used his left hand to parry the move of Balboa; after he held the
handle of his gun with his right hand, in a matter of seconds, he
felt somebody was holding his right hand; he and Balboa
grappled and in two or three seconds the gun was drawn from
its holster as both of them held the gun; more grappling
followed and five seconds after the gun was taken from its
holster it fired, the victim was to his right side when the attempt
to grab his gun began and was still to his right when the gun was
drawn from its holster until it fired, as they were still grappling
or wrestling; his gun was already loaded in its chamber and
cocked when he left his house, and it was locked when it fired;
during the grappling he used his left hand to prevent Balboa
from holding his gun, while the victim used his right hand in
trying to reach the gun; after the gun fired, they were separated
from each other and Balboa fell; he is taller than Balboa though
the latter was bigger in build; he cannot say nor determine who
of them was stronger; after Balboa fell, Sgt. Alag shouted saying
‘stop that’ and he saw Sgt. Alag approaching; sometime after,
Capt. Rolando Maclang, their commanding officer, came, got his
gun, and said that the case be investigated as to what really
happened. He said that when his gun was put in its holster only
its handle protrudes or comes out from it.
"Upon cross-examination, he said that Balboa was a suspect in a
robbery case that happened during the first week of December,
1989; he was the one who filed that case in the town of San
Dionisio and that case involves other persons who were also
detained; before January 4, 1990 he had also the chance to
invite and interrogate Balboa but who denied any robbery case;
x x x [I]t was after he took his lunch that day when Capt.
Maclang called him to conduct the interrogation; when he took
Balboa from the stockade he did not tell him that he (Balboa)
was to be investigated in the investigation room which was
housed in the main building which is fifty meters, more or less,
from the stockade, likewise houses the administrative office, the
office of the commanding officer, officer of the operations
division and that of the signal division; his gun was in its holster
when the victim tried to grab it (gun); from the time he sensed
that the victim tried to grab his gun, he locked the victim; the
hand of the victim was on top of his hand and he felt the victim
was attempting to get his gun; that the entire handle of his gun
was exposed when placed inside its holster; he cannot tell
whether the victim, while struggling with him, was able to hold
any portion of his gun from the tip of its barrel to the point
where its hammer is located; during the incident his gun was
fully loaded and cocked; Sgt. Alag did not approach, but just
viewed them and probably reported the incident to their
commanding officer; he was not able to talk to Sgt. Alag as he
(Pomoy) was not in his right sense; when his commanding officer
came some five to ten minutes later and took away his gun he
did not tell him anything.
"Dr. Salvador Mallo Jr.
"He is the Rural Health Physician of Sara who conducted the
autopsy on the cadaver of Tomas Balboa that afternoon of
January 4, 1990; in his autopsy findings respecting which he
made an autopsy report he said he found two entrance wounds
on the victim, the first on the left chest with trajectory medially
downward, while the second one is on the left side of the
stomach with trajectory somewhat going upward; at the same
time of his examination he saw this victim to be wearing a light-
colored T-shirt and a jacket; other than the T-shirt worn by the
victim, he did not see or find any powder burns and marks and
that those dotted marks in the T-shirt were believed by him to
be powder burns as they look like one; he also found a deformed
slug in the pocket of the jacket of the victim."9
Ruling of the Court of Appeals
The CA anchored its Decision on the following factual findings: 1) the victim
was not successful in his attempts to grab the gun, since petitioner had
been in control of the weapon when the shots were fired; 2) the gun had
been locked prior to the alleged grabbing incident and immediately before
it went off; it was petitioner who released the safety lock before he
deliberately fired the fatal shots; and 3) the location of the wounds found
on the body of the deceased did not support the assertion of petitioner that
there had been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the claim of
petitioner that the death of Balboa resulted from an accident. Citing People
v. Reyes,10 the CA maintained that "a revolver is not prone to accidental
firing if it were simply handed over to the deceased as appellant claims
because of the nature of its mechanism, unless it was already first cocked
and pressure was exerted on the trigger in the process of allegedly handing
it over. If it were uncocked, then considerable pressure had to be applied
on the trigger to fire the revolver. Either way, the shooting of the deceased
must have been intentional because pressure on the trigger was necessary
to make the gun fire."11
Moreover, the appellate court obviously concurred with this observation of
the OSG:
"[Petitioner’s] theory of accident would have been easier to
believe had the victim been shot only once. In this case,
however, [petitioner] shot the victim not only once but twice,
thereby establishing [petitioner’s] determined effort to kill the
victim. By any stretch of the imagination, even assuming without
admitting that the first shot was accidental, then it should not
have been followed by another shot on another vital part of the
body. The fact that [petitioner] shot the victim two (2) times and
was hit on two different and distant parts of the body, inflicted
from two different locations or angles, means that there was an
intent to cause the victim’s death, contrary to [petitioner’s]
pretensions of the alleged accidental firing. It is an oft-repeated
principle that the location, number and gravity of the wounds
inflicted on the victim have a more revealing tale of what
actually happened during the incident. x x x.12
Furthermore, the CA debunked the alternative plea of self-defense. It held
that petitioner had miserably failed to prove the attendance of unlawful
aggression, an indispensable element of this justifying circumstance.
While substantially affirming the factual findings of the RTC, the CA
disagreed with the conclusion of the trial court that the aggravating
circumstance of abuse of public position had attended the commission of
the crime. Accordingly, the penalty imposed by the RTC was modified by
the appellate court in this manner:
"x x x [F]or public position to be appreciated as an aggravating
circumstance, the public official must use his influence, prestige
and ascendancy which his office gives him in realizing his
purpose. If the accused could have perpetrated the crime
without occupying his position, then there is no abuse of public
position.’ (People vs. Joyno, 304 SCRA 655, 670). In the instant
case, there is no showing that the [petitioner] had a
premeditated plan to kill the victim when the former fetched the
latter from the stockade, thus, it cannot be concluded that the
public position of the [petitioner] facilitated the commission of
the crime. Therefore, the trial court’s finding that the said
aggravating circumstance that [petitioner] took advantage of his
public position to commit the crime cannot be sustained. Hence,
there being no aggravating and no mitigating circumstance
proved, the maximum of the penalty shall be taken from the
medium period of reclusion temporal, a penalty imposable for
the crime of homicide. x x x."13
Hence, this Petition.14
Issues
In his Memorandum, petitioner submitted the following issues for the
Court’s consideration:
"I. The Court of Appeals committed serious and reversible error
in affirming petitioner’s conviction despite the insufficiency of
the prosecution’s evidence to convict the petitioner, in contrast
to petitioner’s overwhelming evidence to support his
theory/defense of accident.
"II. The Court of Appeals committed grave and reversible error in
affirming the conviction of the petitioner on a manifestly
mistaken inference that when the gun fired, the petitioner was
in full control of the handle of the gun, because what the
testimonies of disinterested witnesses and the petitioner reveal
was that the gun fired while petitioner and Balboa were both
holding the gun in forceful efforts to wrest the gun from each
other.
"III. The Court of Appeals gravely erred in affirming the solicitor
general’s observation that the fact that petitioner shot the
victim twice establishes petitioner’s determined effort to kill the
victim.
"IV. The appellate court committed serious misapprehension of
the evidence presented when it ruled that the trajectory of the
wounds was front-to-back belying the allegation of petitioner
that he and the victim were side-by-side each other when the
grappling ensued.
"V. The Court of Appeals failed to discern the real import of
petitioner’s reaction to the incident when it stated that the
dumbfounded reaction of petitioner after the incident strongly
argues against his claim of accidental shooting.
"VI. The appellate court committed grave error when it
disregarded motive or lack of it in determining the existence of
voluntariness and intent on the part of petitioner to shoot at the
victim when the same was put in serious doubt by the evidence
presented.
"VII. The Court of Appeals was mistaken in ruling that the
defense of accident and self-defense are inconsistent.
"VIII. The Court of Appeals obviously erred in the imposition of
the penalties and damages."15
In sum, the foregoing issues can be narrowed down to two: First, whether
the shooting of Tomas Balboa was the result of an accident; and second,
whether petitioner was able to prove self-defense.
The Court’s Ruling
The Petition is meritorious.
First Issue:
Accidental Shooting
Timeless is the legal adage that the factual findings of the trial court, when
affirmed by the appellate court, are conclusive.16 Both courts possess time-
honored expertise in the field of fact finding. But where some facts are
misinterpreted or some details overlooked, the Supreme Court may
overturn the erroneous conclusions drawn by the courts a quo. Where, as
in this case, the facts in dispute are crucial to the question of innocence or
guilt of the accused, a careful factual reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the Revised
Penal Code:
"Article 12. Circumstances which exempt from criminal liability.
– The following are exempt from criminal liability:
xxx     xxx     xxx
‘4. Any person who, while performing a lawful act
with due care, causes an injury by mere accident
without fault or intent of causing it.’"
Exemption from criminal liability proceeds from a finding that the harm to
the victim was not due to the fault or negligence of the accused, but to
circumstances that could not have been foreseen or controlled. 17 Thus, in
determining whether an "accident" attended the incident, courts must take
into account the dual standards of lack of intent to kill and absence of fault
or negligence. This determination inevitably brings to the fore the main
question in the present case: was petitioner in control of the .45 caliber
pistol at the very moment the shots were fired?
Petitioner Not in Control
of the Gun When It Fired
The records show that, other than petitioner himself, it was Erna Basa who
witnessed the incident firsthand. Her account, narrated during cross-
examination, detailed the events of that fateful afternoon of January 4,
1990 as follows:
"ATTY. TEODOSIO:
Q. You said that while you were inside the investigation room
you heard a commotion. That commotion which you heard, did
you hear any shouting as part of that commotion which you
heard?
A. Moderately there was shouting and their dialogue was not
clear. It could not be understood.
Q. Did you hear any voices as part of that commotion?
A. No, sir.
Q. From the time you entered the investigation room you did
not hear any voice while you were inside the investigation room
as part of that commotion?
A. There was no loud voice and their conversation could not be
clarified. They were talking somewhat like murmuring or in a low
voice but there was a sort of trouble in their talks.
COURT:
Q. Was there a sort of an exchange of words in their
conversation?
A. Yes, sir.
xxx     xxx     xxx
Q. When you opened the door, you saw Sgt. Pomoy and Mr.
Balboa the deceased in this case? Am I correct?
A. Yes, sir.
Q. And when you saw Sgt. Pomoy was he holding a gun?
A. Not yet, the gun was still here. (Witness illustrating by
pointing to her side) and I saw both of them grappling for that
gun.
Q. Where was the gun at that time?
A. The gun was in its holster. (Witness illustrating by pointing to
[her] side.)
Q. When you demonstrated you were according to you saw the
hands holding the gun. It was Sgt. Pomoy who was holding the
gun with his right hand?
A. I saw two hands on the handle of the gun in its holster, the
hand of Sir Balboa and Sgt. Pomoy.
COURT:
Q. At that precise moment the gun was still in its holster?
A. When I took a look the gun was still in its holster with both
hands grappling for the possession of the gun.
Q. How many hands did you see?
A. Two.
Q. One hand of Sgt. Pomoy and one hand is that of the victim?
A. Yes, sir.
COURT:
Proceed.
ATTY TEODOSIO:
Q. Which hand of Sgt. Pomoy did you see holding the gun?
A. Right hand of Sgt. Pomoy.
Q. And when you see that right hand of Sgt. Pomoy, was it
holding the gun?
A. The right hand of Sgt. Pomoy was here on the gun and Sir
Balboa’s hand was also there. Both of them were holding the
gun.
Q. Which part of the gun was the right hand of Sgt. Pomoy
holding?
A. The handle.
Q. And was he facing Tomas Balboa when he was holding the
gun with his right hand?
A. At first they were not directly facing each other.
Q. So later, they were facing each other?
A. They were not directly facing each other. Their position did
not remain steady as they were grappling for the possession of
the gun force against force.
COURT:
Q. What was the position of the victim when the shots were
fired?
A. When I saw them they were already facing each other.
Q. What was the distance?
A. Very close to each other.
Q. How close?
A. Very near each other.
Q. Could it be a distance of within one (1) foot?
A. Not exactly. They were close to each other in such a manner
that their bodies would touch each other.
Q. So the distance is less than one (1) foot when the gun fired?
A. One (1) foot or less when the explosions were heard.
Q. And they were directly facing each other?
A. Yes, sir.
COURT:
Proceed.
Q. Were you able to see how the gun was taken out from its
holster?
A. While they were grappling for the possession of the gun,
gradually the gun was released from its holster and then there
was an explosion.
Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was
when it fired because they were grappling for the possession of
the gun.
Q. Did you see when the gun fired when they were grappling for
its possession?
A. Yes sir, I actually saw the explosion. It came from that very
gun.
Q. Did you see the gun fired when it fired for two times?
A. Yes, sir.
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the
gun was pointed to because the gun was turning.
xxx     xxx     xxx
Q. Could you tell the court who was holding the gun when the
gun fired?
A. When the gun exploded, the gun was already in the
possession of Sgt. Pomoy. He was the one holding the gun.
Q. After the gun went off, you saw the gun was already in the
hand of Sgt. Pomoy?
A. Yes, sir.
Q. How soon after the gun went off when you saw the gun in the
hand of Sgt. Pomoy?
A. After Balboa had fallen and after they had separated
themselves with each other, it was then that I saw Sgt. Pomoy
holding the gun.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. When the gun was taken out from its holster, Sgt. Pomoy
was the one holding the handle of the gun? Am I correct?
A. Both of them were holding the handle of the gun.
Q. So when the gun was still in its holster, two of them were
holding the gun?
A. Yes sir, they were actually holding the gun, Sgt. Pomoy and
Sir Balboa.
Q. It was the right hand of Sgt. Pomoy who was holding the
handle of the gun as you testified?
A. Yes, sir.
Q. Which hand of Balboa was holding the handle of the gun?
A. Left hand.
Q. At the time Balboa was holding the handle of the gun with his
left hand, was he in front of Sgt. Pomoy?
A. They had a sort of having their sides towards each other.
Pomoy’s right and Balboa’s left sides [were] towards each other.
They were side by side at a closer distance towards each other.
xxx     xxx     xxx
Q. It was actually Sgt. Pomoy who was holding the handle of the
gun during that time?
A. When I looked out it was when they were grappling for the
possession of the gun and the right hand of Sgt. Pomoy was
holding the handle of the gun.
Q. When you saw them did you see what position of the handle
of the gun was being held by Tomas Balboa? The rear portion of
the handle of the gun or the portion near the trigger?
A. When I looked at them it was the hand of Sgt. Pomoy
holding the handle of the gun with his right hand with the hand
of Sir Balboa over the hand of Pomoy, the same hand holding
the gun.
Q. It was in that position when the gun was removed from its
holster?
A. When the gun pulled out from its holster, I was not able to
notice clearly anymore whose hand was holding the gun when I
saw both their hands were holding the gun.
Q. When you said this in [the] vernacular, ‘Daw duha na sila
nagakapot’, what you really mean?
A. Both of them were holding the gun.
Q. But Sgt. Pomoy still holding the handle of the gun?
A. Still both of them were holding the handle of the gun.
Q. With the hand of Balboa still on the top of the hand of Sgt.
Pomoy as what you have previously said when the gun was in
the holster of Sgt. Pomoy?
A. When the gun was pulled from its holster, I saw that Sgt.
Pomoy’s right hand was still on the handle of the gun with the
left hand of Sir Balboa over his right hand of Sgt. Pomoy, like
this (witness illustrating by showing his right hand with her left
hand over her right hand as if holding something. The thumb of
the left hand is somewhat over the index finger of the right
hand.)
COURT:
Which hand of the victim was used by him when the gun was
already pulled out form its holster and while the accused was
holding the handle of the gun?
A. Left hand.
Q. So, he was still using the same left hand in holding a portion
of the handle of the gun up to the time when the gun was pulled
out from its holster?
A. Yes sir, the same left hand and that of Pomoy his right hand
because the left hand of Pomoy was used by him in parrying the
right hand of Sir Balboa which is about to grab the handle of the
gun.
COURT:
Q. So in the process of grappling he was using his left hand in
pushing the victim away from him?
A. Yes, sir.
Q. What about the right hand of the victim, what was he doing
with his right hand?
A. The victim was trying to reach the gun with his right hand
and Pomoy was using his left hand to protect the victim from
reaching the gun with his right hand.
COURT:
Proceed.
ATTY. TEODOSIO:
Q. Did you say a while ago that Mr. Balboa was able to hold the
barrel of the gun of Sgt. Pomoy?
A. Yes, sir.
Q. And that was at the time before the shots were fired?
A. Yes, he was able to hold the tip of the barrel of the gun using
his right hand.
COURT:
Q. That was before the gun fired?
A. Yes, sir."18
The foregoing account demonstrates that petitioner did not have control of
the gun during the scuffle. The deceased persistently attempted to wrest
the weapon from him, while he resolutely tried to thwart those attempts.
That the hands of both petitioner and the victim were all over the weapon
was categorically asserted by the eyewitness. In the course of grappling for
the gun, both hands of petitioner were fully engaged -- his right hand was
trying to maintain possession of the weapon, while his left was warding off
the victim. It would be difficult to imagine how, under such circumstances,
petitioner would coolly and effectively be able to release the safety lock of
the gun and deliberately aim and fire it at the victim.
It would therefore appear that there was no firm factual basis for the
following declaration of the appellate court: "[Petitioner] admitted that his
right hand was holding the handle of the gun while the left hand of the
victim was over his right hand when the gun was fired. This declaration
would safely lead us to the conclusion that when the gun went off herein
[petitioner] was in full control of the gun."19
Release of the Gun’s Safety Lock and
Firing of the Gun Both Accidental
Petitioner testified that the .45 caliber service pistol was equipped with a
safety lock that, unless released, would prevent the firing of the gun.
Despite this safety feature, however, the evidence showed that the weapon
fired and hit the victim -- not just once, but twice. To the appellate court,
this fact could only mean that petitioner had deliberately unlocked the gun
and shot at the victim. This conclusion appears to be non sequitur.
It is undisputed that both petitioner and the victim grappled for possession
of the gun. This frenzied grappling for the weapon -- though brief, having
been finished in a matter of seconds -- was fierce and vicious. The
eyewitness account amply illustrated the logical conclusion that could not
be dismissed: that in the course of the scuffle, the safety lock could have
been accidentally released and the shots accidentally fired.
That there was not just one but two shots fired does not necessarily and
conclusively negate the claim that the shooting was accidental, as the same
circumstance can easily be attributed to the mechanism of the .45 caliber
service gun. Petitioner, in his technical description of the weapon in
question, explained how the disputed second shot may have been brought
about:
"x x x Petitioner also testified on cross-examination that a caliber
.45 semi-automatic pistol, when fired, immediately slides
backward throwing away the empty shell and returns
immediately carrying again a live bullet in its chamber. Thus, the
gun can, as it did, fire in succession. Verily, the location of, and
distance between the wounds and the trajectories of the bullets
jibe perfectly with the claim of the petitioner: the trajectory of
the first shot going downward from left to right thus pushing
Balboa’s upper body, tilting it to the left while Balboa was still
clutching petitioner’s hand over the gun; the second shot hitting
 him in the stomach with the bullet going upward of Balboa’s
body as he was falling down and releasing his hold on
petitioner’s hand x x x."20
Thus, the appellate court’s reliance on People v. Reyes41 was misplaced. In
that case, the Court disbelieved the accused who described how his gun
had exploded while he was simply handing it over to the victim. Here, no
similar claim is being made; petitioner has consistently maintained that the
gun accidentally fired in the course of his struggle with the victim. More
significantly, the present case involves a semi-automatic pistol, the
mechanism of which is very different from that of a revolver, the gun used
in Reyes.22 Unlike a revolver, a semi-automatic pistol, as sufficiently
described by petitioner, is prone to accidental firing when possession
thereof becomes the object of a struggle.
Alleged Grappling Not Negated
by Frontal Location of Wounds
On the basis of the findings of Dr. Jaboneta showing that the wounds of the
deceased were all frontal, the appellate court rejected petitioner’s claim
that a grappling for the weapon ever occurred. It held that "if there was
indeed a grappling between the two, and that they had been side [by] side
x x x each other, the wounds thus inflicted could not have had a front-to-
back trajectory which would lead to an inference that the victim was shot
frontally, as observed by Dr. Jaboneta."23
Ordinarily, the location of gunshot wounds is indicative of the positions of
the parties at the precise moment when the gun was fired. Their positions
would in turn be relevant to a determination of the existence of variables
such as treachery, aggression and so on.
In the factual context of the present case, however, the location of the
wounds becomes inconsequential. Where, as in this case, both the victim
and the accused were grappling for possession of a gun, the direction of its
nozzle may continuously change in the process, such that the trajectory of
the bullet when the weapon fires becomes unpredictable and erratic. In this
case, the eyewitness account of that aspect of the tragic scuffle shows that
the parties’ positions were unsteady, and that the nozzle of the gun was
neither definitely aimed nor pointed at any particular target. We quote the
eyewitness testimony as follows:
"Q. And when the gun fired the gun was on Tomas Balboa?
A. I could not see towards whom the nozzle of the gun was
when it fired because they were grappling for the possession of
the gun.
xxx     xxx     xxx
Q. Did you see the barrel of the gun when the gun fired?
A. I could not really conclude towards whom the barrel of the
gun was pointed to because the gun was turning. "24
xxx     xxx     xxx
"Q And was he facing Tomas Balboa when he was holding the
gun with his right hand?
A At first, they were not directly facing each other.
Q So later, they were facing each other?
A They were not directly facing each other. Their position did
not remain steady as they were grappling for the possession of
the gun force against force."25
In his Petition, this explanation is given by petitioner:
"x x x. The Court of Appeals erred in concluding that Balboa was
shot frontally. First, because the position of the gun does not
necessarily indicate the position of the person or persons
holding the gun when it fired. This is especially true when two
persons were grappling for the possession of the gun when it
fired, as what exactly transpired in this case. x x x.
"[The] testimony clearly demonstrates that the petitioner was
on the left side of the victim during the grappling when the gun
fired. The second wound was thus inflicted this wise: when the
first shot hit Balboa, his upper body was pushed downward
owing to the knocking power of the caliber .45 pistol. But he did
not let go of his grip of the hand of petitioner and the gun,
Balboa pulling the gun down as he was going down. When the
gun went off the second time hitting Balboa, the trajectory of
the bullet in Balboa’s body was going upward because his upper
body was pushed downward twisting to the left. It was then that
Balboa let go of his grip. On cross-examination, petitioner
testified, what I noticed was that after successive shots we
separated from each other. This sequence of events is logical
because the protagonists were grappling over the gun and were
moving very fast. x x x."26
Presence of All the
Elements of Accident
The elements of accident are as follows: 1) the accused was at the time
performing a lawful act with due care; 2) the resulting injury was caused by
mere accident; and 3) on the part of the accused, there was no fault or no
intent to cause the injury.27 From the facts, it is clear that all these elements
were present. At the time of the incident, petitioner was a member --
specifically, one of the investigators -- of the Philippine National Police
(PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was
in the lawful performance of his duties as investigating officer that, under
the instructions of his superior, he fetched the victim from the latter’s cell
for a routine interrogation.
Again, it was in the lawful performance of his duty as a law enforcer that
petitioner tried to defend his possession of the weapon when the victim
suddenly tried to remove it from his holster. As an enforcer of the law,
petitioner was duty-bound to prevent the snatching of his service weapon
by anyone, especially by a detained person in his custody. Such weapon
was likely to be used to facilitate escape and to kill or maim persons in the
vicinity, including petitioner himself.
Petitioner cannot be faulted for negligence. He exercised all the necessary
precautions to prevent his service weapon from causing accidental harm to
others. As he so assiduously maintained, he had kept his service gun locked
when he left his house; he kept it inside its holster at all times, especially
within the premises of his working area.
At no instance during his testimony did the accused admit to any intent to
cause injury to the deceased, much less kill him. Furthermore, Nicostrato
Estepar, the guard in charge of the detention of Balboa, did not testify to
any behavior on the part of petitioner that would indicate the intent to
harm the victim while being fetched from the detention cell.
The participation of petitioner, if any, in the victim’s death was limited only
to acts committed in the course of the lawful performance of his duties as
an enforcer of the law. The removal of the gun from its holster, the release
of the safety lock, and the firing of the two successive shots -- all of which
led to the death of the victim -- were sufficiently demonstrated to have
been consequences of circumstances beyond the control of petitioner. At
the very least, these factual circumstances create serious doubt on the
latter’s culpability.
Petitioner’s Subsequent Conduct
Not Conclusive of Guilt
To both the trial and the appellate courts, the conduct of petitioner
immediately after the incident was indicative of remorse. Allegedly, his guilt
was evident from the fact that he was "dumbfounded," according to the
CA; was "mum, pale and trembling," according to the trial court. These
behavioral reactions supposedly point to his guilt. Not necessarily so. His
behavior was understandable. After all, a minute earlier he had been calmly
escorting a person from the detention cell to the investigating room; and, in
the next breath, he was looking at his companion’s bloodied body. His
reaction was to be expected of one in a state of shock at events that had
transpired so swiftly and ended so regrettably.
Second Issue:
Self-Defense
Petitioner advanced self-defense as an alternative. Granting arguendo that
he intentionally shot Balboa, he claims he did so to protect his life and limb
from real and immediate danger.
Self-defense is inconsistent with the exempting circumstance of accident, in
which there is no intent to kill. On the other hand, self-defense necessarily
contemplates a premeditated intent to kill in order to defend oneself from
imminent danger.28 Apparently, the fatal shots in the instant case did not
occur out of any conscious or premeditated effort to overpower, maim or
kill the victim for the purpose of self-defense against any aggression; rather,
they appeared to be the spontaneous and accidental result of both parties’
attempts to possess the firearm.
Since the death of the victim was the result of an accidental firing of the
service gun of petitioner -- an exempting circumstance as defined in Article
12 of the Revised Penal Code -- a further discussion of whether the assailed
acts of the latter constituted lawful self-defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED.
Petitioner is ACQUITTED.
No costs.
SO ORDERED.
G.R. No. 146664 - February 28, 2002
JOHN ANGCACO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.
MENDOZA, J.:
This is a petition for review on certiorari of the decision, 1 dated November
29, 2000, of the Court of Appeals, which affirmed with modification the
decision,2 dated January 31, 1996, of the Regional Trial Court, Branch 1,
Puerto Princesa City, finding petitioner John Angcaco guilty of murder and
sentencing him accordingly.
Petitioner John Angcaco and his co-accused in the trial court, namely,
Ramon Decosto, Protacio Edep, Lydio Lota, and Mario Felizarte, were
members of the Integrated National Police of Taytay, Palawan. At the time
of the incident, they were serving a warrant of arrest issued by the
Municipal Trial Court of Taytay on Restituto Bergante, who was wanted in
connection with a robbery case. Edep was acting station commander, while
Restituto Bergante was the barangay captain of Bato, Taytay, Palawan. The
information against petitioner and his co-accused alleged -
That on or about the 25th day of September, 1980, more or less 4:00 o'clock
in the morning in barangay Bato, municipality of Taytay, province of
Palawan, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping one another, armed with guns, and with treachery and
evident premeditation and with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault, fire at and shoot FREDDIE
GANANCIAL, hitting the latter with gunshots on vital parts of his body and
inflicting upon him multiple gunshot wounds which were the direct and
immediate cause of his instant death.3
When arraigned on June 3, 1981, all of the accused, with the exception of
Ramon Decosto, entered a plea of not guilty to the crime
charged.4 Decosto, who failed to attend the hearing on that date, was later
arraigned on June 23, 1981, during which he entered a plea of not guilty.
Thereafter trial ensued.
The prosecution presented seven witnesses: Noe Bergante,5 Noel Bergante,
Dr. Alberto Lim, Honorato Flores, Henry Pulga, Antonio Arosio, and Adolfo
Jagmis. The gist of their testimonies is as follows:
At around 4 o'clock in the morning of September 25, 1980, Noe Bergante
and his brother Noel Bergante and his cousin Freddie Ganancial were
awakened by the sound of gunfire while they were asleep in their house in
Bato, Taytay, Palawan. Their mother, who was frightened, fainted and had
to be helped by Noe. Noel went to the kitchen and, from there, saw
Protacio Edep fire his carbine, as he shouted, "Kapitan, you come down,
this is [a] peace officer." He was apparently referring to Restituto Bergante.
Noel answered that his father was not in the house, having gone to Puerto
Princesa. Edep then ordered the men in the house to come out. Noel
accordingly went to the gate and later called Noe to also come out of the
house. Noe and his cousin, Freddie Ganancial, did as bidden.
Once they were outside the house, Noe and Freddie were flanked by
petitioner Angcaco on the right side and accused Ramon Decosto on the left
side. Decosto pointed an armalite at the two and warned them not to run.
Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie
saying, "You are tough," and pushed him. Then, shots rang out from the
armalite and short firearm of Decosto and Edep, as a result of which
Freddie Ganancial turned around and dropped to the ground face down.
Decosto was around three meters away from Freddie.
In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw,
through the window, Lota and Angcaco turning over the body of Freddie
Ganancial. After briefly leaving the body, both came back 15 minutes later.
Noe said Lota brought with him an object wrapped in a newspaper, which
Noe surmised was a knife. Lota placed the object in the right hand of
Freddie Ganancial. Noel, on the other hand, said that he returned to the
crime scene and recovered two empty shells which he gave to a certain
Major Silos. Noe reported the matter to Barangay Tanods Sabino Mahinay
and a certain Ramon.6
Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies
of Noe and Noel Bergante. According to Arosio, at around 4:30 a.m. of
September 25, 1980, while he was asleep in his house in Bato, Taytay,
Palawan, he was awakened by the sound of gunfire. He said he heard a
commotion outside, followed by another volley of shots. He claimed he
recognized by their voices some of the persons involved, namely, Protacio
Edep, Noel Bergante, and Freddie Ganancial.
Arosio claimed that accused Decosto and Felizarte fetched him from his
house a short time later and took him to Edep, who was then in the house
of the barangay captain. Arosio was asked about the whereabouts of the
barangay captain. He told Edep that Restituto Bergante, the barangay
captain, had gone to Puerto Princesa two days earlier.
Arosio testified that on his way home he saw a person lying on the ground
in a prone position. He later learned it was Freddie Ganancial. Arosio
identified in court the policemen whom he saw that morning, that is, Edep,
Decosto, Felizarte, Lota, and Angcaco.
On cross-examination, Arosio claimed that he was investigated by a police
officer, whose name he could not remember, three years after the incident.
The investigation was held in the house of Barangay Captain Restituto
Bergante, who told him that he would testify in this case. Although he was
reluctant to testify because of fear, Arosio said he finally agreed to do so in
1984. Prior to the incident, he had not heard Edep's voice but only assumed
that the voice he heard that morning was that of Edep as the latter was the
highest-ranking policeman he later saw.7
Although Dr. Romeo D. Valino conducted the postmortem examination on
the body of Freddie Ganancial, it fell to Dr. Alberto H. Lim, Assistant
Provincial Health Officer in Palawan, to identify the medico-legal report of
Dr. Valino and to explain its contents in view of Dr. Valino's death pending
the trial of the case.
Dr. Valino's report stated in pertinent parts:
Physical Examination:
1. Gunshot wound lateral aspect D/3rd arm right (entrance) with contusion
collar thru and thru passing thru the medial aspect arm right, entering to
the lateral aspect mid axillary line at the level of the 9th rib hitting ascending
colon and small intestine.
2. Gunshot wound at the level of the 7th rib at anterior axillary line right
with contusion collar (entrance) to the epigastric region (exit) 10 cm[s]. x 3
cm[s]. hitting the liver (mascerated).
3. Gunshot wound subcostal region right at the level of mid clavicular line
(entrance) right side to the subcostal region left side (exit at the level of mid
mammary line).
4. Stomach with alcoholic smell.
5. Clotted blood at abdominal cavity, about 500 cc.
Cause of Death:
- Shock secondary to internal and external hemorrhage due to gunshot
wounds - body and abdomen.8
Dr. Lim identified the medical report signed by Dr. Valino because he was
familiar with the handwriting of the latter. As regards the contents of the
medical certificate, Dr. Lim stated that Freddie Ganancial, alias Edgar
Gallego, 25 years of age, died as a result of shock secondary to internal and
external hemorrhage due to gunshot wounds on the body and abdomen,
which means that the victim died because of loss of blood resulting in shock
due to a gunshot wound in the abdomen. He testified that the victim
sustained three gunshot wounds. The first gunshot entered the body at the
lateral aspect distal third arm with contusion collar, the bullet entering the
lateral aspect midaxillary line at the level of the ninth rib and hitting the
colon and small intestine. The second gunshot wound was located at the
right side of the body at the seventh rib at right anterior axillary line with
contusion collar (entrance), the bullet passing through the epigastric region
and hitting the liver, which was mascerated. The third gunshot wound was
in the right subcostal region at the level of the midclavicular line (entrance)
right side to the left side of the subcostal region, the bullet exiting below
the nipple.
On cross-examination, Dr. Lim said that based on the findings of the
medical report, the victim had been taking liquor prior to his death. He also
admitted that he had not undertaken studies on the identification of
handwriting. Dr. Lim claimed that he identified the signature of Dr. Valino in
the medical report on the basis of the other reports the latter had
submitted to their office.9
Honorato Flores, senior ballistician of the National Bureau of Investigation
(NBI) in Manila, identified the ballistics report he had prepared and the
shell fragments presented to him for examination. He said that the
fragments could have possibly been caused by the impact of the bullet on a
human being.
When cross-examined, Flores said that no armalite rifle was given to him
but only shell fragments were presented to him for examination. He said
that the gun and the lead would have to be examined by using the bullet
comparison microscope to determine whether the lead was fired from the
same gun. A bone or a cement flooring could have caused the shell
fragments to break, according to Flores. Upon inquiry by the trial court, he
said it was possible that a piece of copper and the lead formed part of one
bullet, but it was also possible that they did not.10
Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified
that on October 6, 1980, he investigated the complaint filed by Barangay
Captain Bergante regarding the killing of the latter's nephew, Freddie
Ganancial. He identified the affidavits of Mario Felizarte (Exh. H) and Ramon
Decosto (Exh. I), which he himself prepared. According to Pulga, he
informed Felizarte and Decosto of their rights to counsel and to remain
silent and explained to them the import of these rights. He said that
Felizarte and Decosto voluntarily gave their statements before him,
although Pulga also admitted that the two did not have counsel to assist
them during the investigation.11
The last witness for the prosecution was Adolfo D. Jagmis, the chief
investigator of the Palawan Constabulary based in Tiniguiban. He testified
that on October 6, 1980 he investigated Edep, Lota, and Angcaco. He said
that after Angcaco was apprised of his constitutional rights, the latter
executed a statement (Exh. J),12 which Jagmis identified in court. But Jagmis
admitted that the statement was made without the assistance of counsel.13
On cross-examination by counsel for accused Decosto, Jagmis was
confronted with the affidavit of Angcaco, in which the latter identified an
armalite which he allegedly used at the time of the incident. Jagmis said the
armalite and the lead recovered from the scene were both given to the
Provincial Fiscal's Office.
The defense presented as its witnesses Protacio Edep, Ramon Decosto,
John Angcaco, and Lydio Lota, whose testimonies are as follows:
In the early morning of September 25, 1980, petitioner and his co-accused,
led by Edep, went to the house of Restituto Bergante in Bato, Taytay,
Palawan to serve a warrant for the latter's arrest. When they reached the
house, Edep and his men took positions as they had been warned that
Restituto Bergante might resist arrest. Decosto and Angcaco were each
armed with armalites, Lota had a carbine, Felizarte a revolver, and Edep a
carbine and a revolver. Decosto was on the left side of Edep, around seven
to 10 meters from the latter. Angcaco, on the other hand, was on right side
of Edep, around four to seven meters from the latter. Edep called Restituto
Bergante to come out of the house as he (Edep) had a warrant for his
arrest. Restituto's wife replied that her husband was not in the house,
having gone to Puerto Princesa. A commotion then took place inside the
house and, shortly after, petitioner saw a man coming down the house.
They fired warning shots to stop the man, but petitioner saw another
person with a bolo near Edep. He shouted, "Sarge, this is the man who tried
to hack you!," and shot the unidentified man, who fell to the ground face
up. At the time of the incident, Decosto was on the left side of Edep, while
petitioner, Felizarte, and Lota were on the right side of Edep. They later
learned that the person killed was Freddie Ganancial.
Edep conducted an investigation and recovered from the scene of the crime
empty shells from armalite bullets, which he turned over to the provincial
fiscal. Edep and his men were then taken to Taytay and investigated by
P/Sgt. Adolfo Jagmis. Thereafter, Edep and his men learned that they were
charged with murder. An administrative complaint for grave misconduct
was likewise filed against them in the National Police Commission, but the
case was dismissed.14
On January 31, 1996, the trial court rendered a decision, the dispositive
portion of which reads:
WHEREFORE, after a careful evaluation of the evidence on record, this court
is of the considered opinion, and so holds, that accused John Angcaco, is
GUILTY beyond reasonable doubt of the crime of Murder defined and
penalized in Article 248 of the Revised Penal Code. With the presence of the
mitigating circumstance of lack of intention to commit so grave a wrong
and with the application of the Indeterminate Sentence Law, this Court
hereby imposes upon him the penalty of imprisonment ranging from
seventeen (17) years and four (4) months of reclusion temporal as
minimum, to twenty (20) years of reclusion temporal, as maximum, and to
pay the heirs of Freddie Ganancial the amount of fifty thousand pesos
(P50,000.00) as death indemnity.
Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte
are ordered ACQUITTED for insufficiency of evidence.15
Petitioner Angcaco filed an appeal with the Court of Appeals, which
affirmed with modification the trial court's decision. The dispositive portion
of the Court of Appeals decision reads:
WHEREFORE, with the modification only that the mitigating circumstance of
incomplete fulfillment of a lawful duty should be appreciated in
determining the imposable penalty, not lack of intention to commit so
grave a wrong, the trial court had correctly imposed the penalty of
imprisonment ranging from seventeen (17) years and four (4) months
of reclusion temporal as minimum, to twenty (20) years of reclusion
temporal as maximum the questioned decision is affirmed in all other
respects.
Costs against the accused.
SO ORDERED.16
Hence this appeal. Petitioner raises the following issues -
I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR
MISCONSTRUED THE EVIDENCE FOR THE DEFENSE THAT ALL THE ELEMENTS
OF DEFENSE OF [THE] PERSON OR RIGHTS OF A STRANGER ARE PRESENT.
II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-
ACCUSED HAS BEEN VIOLATED WHEN THE HONORABLE COURT OF APPEALS
OVERLOOKED OR FAILED TO APPRECIATE THE WEAKNESS OF THE
PROSECUTION'S EVIDENCE AND ITS FAILURE TO ESTABLISH HIS GUILT
BEYOND REASONABLE DOUBT.
III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING
[PETITIONER] APPELLANT.17
First. Petitioner Angcaco argues that the prosecution evidence failed to
prove his guilt beyond reasonable doubt. He points out inconsistencies and
contradictions in the testimonies and affidavits of prosecution witnesses
Noel and Noe Bergante.
We agree with accused-appellant's contention. Generally, contradictions
between the contents of the witness' affidavit and his testimony in court do
not impair his credibility because affidavits are usually taken ex parte and,
for that reason, often incomplete and inaccurate. 18 An affidavit will not
always disclose all the facts and will even at times, without being noticed by
the witness, inaccurately describe the occurrences related therein. Thus,
we have time and again held that affidavits are generally inferior to
testimonies in court. Affidavits are often prepared only by the investigator
without the affiant or witness having a fair opportunity to narrate in full the
incident which took place, whereas in open court, the latter is subjected to
cross-examination by counsel for the accused.19
However, where the discrepancies between the affidavit and the witness'
testimony on the stand are irreconcilable and unexplained and they refer to
material issues, such inconsistencies may well reflect on the witness'
candor and even honesty and thus impair his credibility. 20 Hence, we have
recognized as exceptions to the general rule instances where the narration
in the sworn statement substantially contradicts the testimony in court or
where the omission in the affidavit refers to a substantial detail which an
eyewitness, had he been present at the scene at the time of the
commission of the crime, could not have failed to mention.21 The case at
bar is such an instance.
Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie
Ganancial.22 However, in his affidavit, dated November 24, 1980, Noe
pointed to Decosto as the lone assailant. Noe also failed to mention the
presence of Angcaco at the scene at the time of the commission of the
crime.23 Noe tried to explain these material omissions in his affidavit by
claiming that he mentioned these details to the fiscal but the latter must
have forgotten to include them in the affidavit because he (the fiscal) was in
a hurry to leave that day.24 This explanation is too pat to be accepted. To
begin with, Noe admitted that the investigating fiscal, Fiscal Vergara,
explained to him the contents of the affidavit before he (Noe) signed
it.25 Noe, therefore, could have noticed the omission of such vital matters
which concerned the identification of the persons responsible for his
cousin's death and called attention to such omission. The identity of the
malefactors is too important a detail for anyone who allegedly witnessed
the incident to overlook its omission in the very statement of the incident
one is giving. The omissions suggest Noe's ignorance of the details of the
incident as well as his readiness to perjure himself in order to implicate all
of the accused in this case.
Noel Bergante fared no better than his brother on the witness stand. On
direct examination, Noel, like his brother, identified Edep and Decosto as
the assailants of Freddie Ganancial.26 However, Noel's affidavit, dated
November 24, 1980, only mentioned Decosto as the person responsible for
the killing of Freddie Ganancial.27 Worse, Noel executed an affidavit earlier
on September 26, 1980, in which he identified Jardiolin,28 Mario Toledo,
Lydio Lota, and Mario Gonzales as the companions of Decosto at the time
of the commission of the crime.29 But, in his testimony, Noel said that
Decosto's companions were Edep, Angcaco, Felizarte, and Lota. 30 When
confronted with the discrepancy, Noel said that he really meant to refer to
Angcaco, instead of Jardiolin, and to Ramon Decosto instead of Toledo.
When further questioned, Noel said that he was referring to Lota when he
mentioned the name of Toledo,31 thus creating more confusion with his
answers. These contradictions, when taken together with Noel's claim that
he had known Jardiolin, Felizarte, and Angcaco for a long time, cast serious
doubts on his credibility.
Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible
and consistent account of the identity of the person or persons responsible
for the killing of Freddie Ganancial. There is apparent from a reading of
their testimonies a manifest tendency to improvise, modify, and even
contradict themselves in order to implicate each of the accused. It is in fact
doubtful whether Noe and Noel saw what they testified about. Even the
trial court disregarded the testimonies of Noe and Noel Bergante and
acquitted Edep and Decosto in spite of their identification by these
witnesses.
We are thus left with no clear picture of the events that transpired on
September 25, 1980 and of the identity of the shooter or shooters. It
cannot be overemphasized that the constitutional presumption of
innocence demands not only that the prosecution prove that a crime has
been committed but, more importantly, the identity of the person or
persons who committed the crime.32 But in the case at bar, what passed for
the prosecution evidence was a befuddling amalgamation of half-truths and
lies obviously fabricated by these supposed eyewitnesses to hold
responsible each of the accused in this case for the killing of their cousin.
For this reason, we hold that the prosecution evidence failed to meet the
quantum of proof beyond reasonable doubt necessary for conviction in a
criminal case.
Second. The conviction of petitioner Angcaco must, however, be upheld in
view of his admission that he shot Freddie Ganancial. The rule is that while
the prosecution has the burden of establishing the guilt of the accused,
once the defendant admits commission of the act charged, although he
invokes a justification for its commission, the burden of proof is shifted to
him to prove the said justifying circumstance. 33 Petitioner Angcaco cannot
rely on the weakness of the evidence for the prosecution, for even if it is
weak, it cannot be disbelieved after he has admitted the killing itself.34 This
is because a judicial confession constitutes evidence of a high order. It is
presumed that no sane person would deliberately confess to the
commission of an act unless moved by the desire to reveal the truth.35
Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom
Freddie Ganancial was about to strike with a bolo. We do not agree. For
petitioner to successfully claim the benefit of Art. 11, par. 3 of the Revised
Penal Code, there must be proof of the following elements: (1) unlawful
aggression; (2) reasonable necessity of the means employed to prevent or
repel it; and (3) the person defending be not induced by revenge,
resentment, or other evil motive.
Unlawful aggression on the part of the victim, which must be sufficiently
proven by the defense,36 is present when there is actual or imminent peril
to one's life, limb, or right. There must be actual physical force or actual use
of a weapon by the victim himself.37 In this case, it is contended that the
victim, who was armed with a bolo, approached Edep menacingly. But,
there is no other competent evidence to corroborate this self-serving claim.
Edep testified that he heard petitioner's warning that an armed man was
behind him.38 However, when asked about the weapon allegedly held by
the victim, Edep replied that he did not see any as he turned around to face
his supposed assailant.39 It was only later that Edep claimed seeing a knife
in the area where the victim fell.40 One is thus led to suspect that Edep's
claim that he saw a knife was a mere afterthought designed to exculpate his
fellow officer from the charges against him.
Petitioner's own testimony suffers from inconsistencies and improbabilities
on material points.
First, there was no reason for the victim, Freddie Ganancial, to attack Sgt.
Edep, who was looking for Restituto, because the latter was not there in his
house, having earlier gone to Puerto Princesa. In fact, Edep admitted he
was about to order his men to leave the premises when they found that
their quarry was not there. The victim himself was not wanted by the
police. Dr. Lim said Ganancial was drunk. In that condition, he could have
easily have been overpowered by any member of the arresting team, if he
made any aggressive move, without shooting him to prevent him from
doing harm to the latter.
Second, when cross-examined about the bolo, petitioner said he could not
remember who took it away.41 However, at a later hearing, petitioner
stated that it was he who picked up the bolo and turned it over to Edep, his
superior officer.42 But how could he not remember who took the bolo if he
was the one who did so? Once again, petitioner was prevaricating.
Third, petitioner said that he merely intended to fire a warning shot when
he saw Ganancial. This claim is belied by the fact that the victim sustained
three gunshot wounds on the chest and abdomen. It is apparent that
petitioner intended to kill the victim and not merely to warn him.
Indeed, even assuming that the victim was charging at Sgt. Edep, it would
have been sufficient for petitioner to warn Sgt. Edep of the danger. Not that
petitioner was not expected to pause for a moment while his colleague was
in danger.43 However, the rules of engagement do not, on the other hand,
require that he should immediately draw or fire his weapon if the person
accosted did not heed his call. 44 But rather than confront the victim as to his
intended purpose, petitioner immediately shot the former without further
thought.
Petitioner claims the victim was armed with a bolo. The circumstances,
however, indicate otherwise. Petitioner was questioned by the prosecutor
on the existence of the bolo during the hearing held on October 7, 1986.
The bolo was presented in court only on October 17, 1986. At the hearing
on that date, petitioner and Lydio Lota both claimed that they could
identify the bolo by the markings placed on it by Sgt. Edep.45 But Sgt. Edep
made no mention of having recovered a bolo, much less of marking it. In
fact, Edep at one point testified that he did not see any weapon near the
victim. It is doubtful, therefore, that the bolo offered in evidence by the
defense was the one actually recovered from the scene of the crime.46 It is
more likely that the idea to offer the bolo in question was a mere
afterthought by the defense brought about by the fiscal's own reminder
that the presentation of the weapon was crucial to petitioner's plea of of time between decision and execution to allow the accused to reflect
defense of stranger.47 upon the consequences of his act.54 None of these elements has been
Nor can petitioner's claim that the killing was done in fulfillment of a lawful shown in this case.
duty be sustained, as the Court of Appeals ruled. For this justifying For the foregoing reasons, petitioner is liable only for homicide, for which
circumstance to be appreciated, the following must be established: (1) that the penalty under Art. 249 of the Revised Penal Code is reclusion
the offender acted in the lawful exercise of a right or a duty; and (b) that temporal. As neither mitigating nor aggravating circumstances attended the
the injury or offense committed be the necessary consequence of the due commission of the crime, the penalty must be imposed in its medium
performance of such right or office.48 period, pursuant to Art. 64(1) of the Revised Penal Code. Applying the
In this case, the mission of petitioner and his colleagues was to effect the Indeterminate Sentence Law, the minimum imposable penalty on accused-
arrest of Restituto Bergante. As Edep himself explained, the standard appellant falls within the range of the penalty next lower in
procedure in making an arrest was, first, to identify themselves as police degree, i.e., prision mayor, or from six (6) years and one (1) day to twelve
officers and to show the warrant to the arrestee and to inform him of the (12) years. Accordingly, the penalty to be imposed on accused-
charge against him, and, second, to take the arrestee under custody.49 But, appellant must be fixed within the range of prision mayor, or from six (6)
it was not shown here that the killing of Ganancial was in furtherance of years and one (1) day to twelve years (12) years, as minimum, to reclusion
such duty. No evidence was presented by the defense to prove that temporal medium, or from fourteen (14) years, eight (8) months, and one
Ganancial attempted to prevent petitioner and his fellow officers from (1) day to seventeen (17) years and four (4) months, as maximum.
arresting Restituto Bergante. There was in fact no clear evidence as to how Petitioner should also be made to pay the heirs of the victim, Freddie
Freddie Ganancial was shot. Indeed, as already stated, any attempt by the Ganancial, the amount of P50,000.00 as moral damages,55 in addition to the
victim to arrest the wanted person was pointless as Restituto Bergante was amount of P50,000.00 awarded by the trial court and the Court of Appeals
not in his house. As regards the second requisite, there can be no question as indemnity.56 The purpose of making such an award of moral damages is
that the killing of Freddie Ganancial was not a necessary consequence of not to enrich the heirs of the victim but to compensate them for injuries to
the arrest to be made on Restituto Bergante. their feelings.57
Reliance by the Court of Appeals on the case of People v. Oanis50 is WHEREFORE, the decision of the Court of Appeals, dated November 29,
misplaced. In Oanis, the accused, who were police officers, shot and killed 2000, is AFFIRMED with the MODIFICATION that petitioner is found guilty
the victim under the erroneous notion that the latter was the person they of the crime of homicide and is sentenced to suffer the penalty of eight (8)
were charged to arrest. The Court held that the first requisite - that the years and one (1) day of prision mayor, as minimum, to fourteen (14) years,
offenders acted in performance of a lawful duty - was present because the eight (8) months, and one (1) day of reclusion temporal, as maximum, and
offenders, though overzealous in the performance of their duty, thought to pay the heirs of the victim, Freddie Ganancial, P50,000.00 as civil
that they were in fact killing the man they have been ordered to take into indemnity and P50,000.00 as moral damages.
custody dead or alive. In this case, petitioner did not present evidence that SO ORDERED.
he mistook Freddie Ganancial for Restituto Bergante and, therefore, killed
him (Ganancial) perhaps because he placed the lives of the arresting
officers in danger.
Third. On the other hand, we think the Court of Appeals erred in
appreciating the qualifying circumstance of treachery against petitioner.
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 insure its execution, without risk to
himself arising from the defense which the offended party might take. 51 For
treachery to exist, two conditions must be present: (1) there must be
employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate; and (2) the means of
execution were deliberately or consciously adopted.52 As has been
discussed, the testimonies of prosecution witnesses Noe and Noel Bergante
cannot be given credence. As we already stated, even the trial court
acquitted accused Decosto and Edep, both of whom were implicated as the
assailants. Without evidence of the manner the aggression was made or
how the act resulting in the death of the victim began and developed, it is
not possible to appreciate the qualifying circumstance of treachery.53
Nor can evident premeditation be appreciated in this case. Evident
premeditation requires proof of the following elements: (1) the time when
the accused decided to commit the crime; (2) an overt act manifestly
indicating that he has clung to his determination; and (3) a sufficient lapse