SECOND DIVISION
[ G.R. No. 106582, July 31, 1997 ]PEOPLE v. VS.RUPERTO BALDERAS Y CABUSOG +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.RUPERTO BALDERAS Y CABUSOG, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. VS.RUPERTO BALDERAS Y CABUSOG +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.RUPERTO BALDERAS Y CABUSOG, ACCUSED-APPELLANT.
D E C I S I O N
MENDOZA, J.:
This is an appeal from the decision dated July 10, 1992 of the Regional Trial Court at Dumaguete City (Branch 30), finding accused-appellant Ruperto Balderas y Cabusog guilty of the murder and sentencing accused-appellant to reclusion perpetua, and ordering
him to indemnify the heirs of the victim Gilbert Cadiente in the amount of P50,000.00 and to pay costs.[1]
It appears that in the evening of March 16, 1991 (not March 17, 1991 as some of the witnesses had mistakenly testified), William Devila met accused-appellant Ruperto Balderas and the latter's companions, Mckinly Diada and Samuel Casido, as the latter were on their way home from work in Sitio Matambok, Barangay Mandalupang in the Municipality of Manjuyod, Negros Oriental. The three, who are sugar cane plantation workers, were carrying their "lading" or cane knives.[2] William Devila invited the three to go with him to the Mayflower dance at Sitio Matambok and enjoy themselves "a little." The three agreed. They arrived at the dance hall at 8:00 in the evening and proceeded to a store beside the place where the dance was to be held and there had a drinking session. They consumed one flat bottle of Añejo Rhum compliments of accused-appellant.
What happened afterwards is subject of divergent accounts by the prosecution and the defense. The prosecution's version is as follows:
Per the testimony of Vicente Calidguid,[3] at around midnight, there was an altercation between Samuel Casido and Rudy Cadiente. The two were grappling for the hunting knife held by Casido. Calidguid saw Gilbert Cadiente approaching, presumably to help his brother Rudy, but Gilbert was struck from behind with a cane knife by accused-appellant Ruperto Balderas. Gilbert was hit on the back of the head. Seriously wounded, he ran towards the house of his brother Rudy which was 12 meters away. Calidguid said he was three to four meters away from the protagonists and that he was unaware of any previous quarrel between the deceased and the accused.
For his part, Rudy Cadiente, a barangay tanod, testified[4] that at around midnight of March 16, 1991, he saw Samuel Casido pull out a hunting knife in the middle of the dance floor. As he tried to disarm Casido, William Devila intervened and told him to leave Casido alone and he (Devila) would take care of Casido. As Rudy released Casido's hand, however, the latter boxed him. They then wrestled for possession of the hunting knife. As the two fought each other, the Petromax lamp nearby went off, rendering the place partly dark. Knowing that Casido had companions who were armed, Rudy Cadiente ran away and went home. He identified Casido's companions as accused-appellant Ruperto Balderas, Mckinly Diada, and William Devila. Upon reaching his house, Rudy saw his brother downstairs wounded. He had injuries on the nape, right foot, and in the middle of the chest. He took Gilbert to the Bais Emergency Hospital, but Gilbert was dead on arrival. In his cross-examination, Rudy Cadiente said that he did not see his brother attacked.[5]
Dr. Norberto J. Baldado, Jr., resident physician of the Bais General Hospital, issued a medical certificate[6] which listed the wounds suffered by Gilbert as follows:
1) Stab wound, 1 cm., penetrating 6th ICS along left parasternal line;
2) Incised wound, 3 cm., right foot distal third anterior;
3) Lacerated wound, 5 cm., occiput.
Dr. Baldado, Jr. testified[7] that Injury No. 1[8] located just below the nipple on the left side of the breast bone was "penetrating" and "most probably . . . fatal" as it "most probably" injured the blood vessels of the heart. Injury No. 2,[9] located on the right foot, was considered by Dr. Baldado, Jr. not fatal unless complications set in. Injury No. 3 [10] at the back part of the head was also considered by Dr. Baldado, Jr. not fatal because it only lacerated the soft tissue of the head and did not fracture the skull. According to Dr. Baldado, Jr., damage to the brain as a result of this injury was "possible but quite remote."
Accused-appellant's defense is basically alibi. He testified[11] that in the evening of March 16, 1991, while he, Samuel Casido, and Mckinly Diada were on their way to Cagihayan, Lamugong, Manjuyod, after coming from work in Alangilan, they met William Devila who invited them to go to the dance in Sitio Matambok. They decided to go with Devila, bringing with them their cane knives, which they used for work, wrapped in the sleeves of their jackets. Accused-appellant and his companions arrived at the dance at around 8:00 p.m. They proceeded to a small store where they had some drinks and stayed there until 10:00 p.m. Accused-appellant then went home with Mckinly Diada. Samuel Casido had gone with his uncle Vicente Calidguid, while William Devila had joined his gang. Accused-appellant's residence is four kilometers away from Sitio Matambok. Upon arriving at his house, accused-appellant went to sleep. Diada proceeded to his house farther down the road. The following morning, accused-appellant was told by Julio Palagtiw that he and Diada were wanted for the killing of Gilbert Cadiente. For this reason, he and Diada went to the Office of the Chief of Police of Manjuyod to verify the information, but no sooner had they arrived than they were taken into custody. Samuel Casido, who had earlier been arrested, pointed to them as his companions. Accused-appellant and Diada stayed in jail from March 19 to 24 until they were released on the 25th upon the intercession of Alberto and Rudy Cadiente and Devila. Accused-appellant's alibi was corroborated by Mckinly Diada[12] and William Devila.[13]
Devila's testimony added further details regarding the fight between Samuel Casido and Rudy Cadiente. He testified that after failing to stop the fight, he left the protagonists, but, as he stepped back, he bumped the lamp post and as a result the light was extinguished. He moved over to a place 30 meters away where there was a light and saw the fight break up as Samuel Casido ran away and Rudy Cadiente went home, although before going Rudy hurled a stone at Casido.[14] Rudy Cadiente's house could be seen from where the witness was. The people in the house were agog as they found Gilbert Cadiente crawling on the ground wounded.[15]
In his cross-examination, Devila was shown the affidavit he executed dated March 20, 1991. He denied having made the answer to Question No. 3, in which he pointed to Samuel Casido as having stabbed Gilbert Cadiente. He said that he had merely been made to make the answer by Rudy Cadiente.[16]
The defense also called as witness SPO1 Jaime Tolete, who had filed the original criminal complaint against accused-appellant. Tolete testified concerning entries in the police blotter of the PNP Police Station of Manjuyod. The entries read:[17]
In its decision, the RTC disregarded Exhs. 1-4 of the defense, which were the affidavits taken during the preliminary investigation. Exh. 1 was William Devila's affidavit in the dialect dated May 22, 1991, retracting his affidavit dated March 20, 1991 (Exh. 1-a). Exh. 2 was Alberto Cadiente's affidavit, while Exh. 3 was that of Rudy Cadiente. Xerox copies of certain pages of the police blotter (Exhs. 4 and 4-a) were likewise excluded.[18] The court explained that -
First. As in all criminal prosecutions, the conviction must be based on the strength of the prosecution's evidence and not on the weakness or absence of evidence of the defense.[19] In this case, the only prosecution eyewitness, Vicente Calidguid, testified that accused-appellant struck the victim Gilbert Cadiente with a cane knife once, hitting him on the nape. The wound inflicted, which the doctor identified as Wound No. 3, was according to him not a fatal one.
The Solicitor General argues that infliction of this wound is sufficient to convict accused-appellant of murder, because it "could have caused brain injury as admitted by the attending physician [and] contributed as cause of the death of the victim."[20]
This possibility, however, is a remote one as the following testimony of Dr. Norberto Baldado, Jr. explains:[21]
Dr. Baldado, Jr. found it was Injury No. 1, the stab wound located on the left side of the victim's chest, which was "penetrating" and "most probably . . . fatal because right beneath that area [are] the blood vessels of the heart and there are many blood vessels there and most probably it was injured by that stab wound."[23]
Since there is no eyewitness account regarding the infliction of the fatal wound, it becomes necessary to consider if there is circumstantial evidence to make accused responsible for the same. The circumstances that might possibly tie accused-appellant to this wound are the following: (1) the fact that accused-appellant attacked Gilbert Cadiente and wounded him on the back of his head; (2) the fact that the fatal wound on the chest was caused by a "pointed instrument;"[24] and (3) the fact that accused-appellant's "lading" or cane knife was a "pointed instrument."
These circumstances must be appraised in light of the requirements of the Rules of Court for sufficiency of circumstantial evidence, i.e., (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[25] The circumstances must form an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the guilty person.[26]
First of all the fact that accused-appellant wounded Gilbert Cadiente does not necessarily mean that he also inflicted all the wounds which the victim was found to have suffered. Indeed Vicente Calidguid's testimony was that accused-appellant hit Gilbert only once after which both he and his victim ran away. Calidguid's testimony was as follows:[27]
We next go to the matter of the weapon used to inflict the wound in question, a "sharp-pointed instrument" which penetrated to the heart of the victim. There were a number of persons present at the dance who also had cane knives, among whom were accused-appellant's companions, Samuel Casido and Mckinly Diada.
Moreover, the medical certificate describes the fatal wound as "1 cm. long." It is doubtful whether a cane knife which has a maximum width of five inches, although possessing a sharp pointed end, can leave a surface wound of that minuscule length if it had to penetrate to the heart, thereby damaging the blood vessels thereof. A more probable weapon would be an icepick.
In sum, the circumstantial evidence in this case does not point with certainty to accused-appellant as responsible for the fatal wound suffered by Gilbert Cadiente. In this, as in all criminal cases, speculation and probabilities cannot take the place of proof required to establish guilt of an accused beyond reasonable doubt.[28] Suspicion, no matter how strong, can not sway judgment.[29] Here, the means and the opportunity to inflict the fatal wound were not accused-appellant's alone to the exclusion of all others.
Second. The trial court nonetheless found accused-appellant guilty of the murder of Gilbert Cadiente because of his "treacherous participation in inflicting injuries on Gilbert Cadiente." This would be correct if there was a conspiracy. But, as noted by the Solicitor General, the information did not allege conspiracy and the number of the author/authors of the other injuries as in fact, it charged accused-appellant of having inflicted all the wounds.[30]
At any rate, conspiracy must be proven beyond reasonable doubt.[31] In this case not only was there no evidence of prior agreement. There was also no showing of concerted action taken to kill Gilbert Cadiente.
Third. Although there were many present at the dance who could possibly have witnessed the killing of Gilbert Cadiente, the prosecution was able to present only one eyewitness, Vicente Calidguid, and that was only with respect to Injury No. 3, a non-fatal wound. The police seized a cane knife and certain clothing in relation to the incident,[32] but for one reason or another they did not produce them during trial. On the other hand, the doctor who executed a medical certificate could only talk of probabilities as to the cause of the victim's death for lack of an autopsy.[33] This gap in the prosecution's evidence moved the trial court to call for zeal and diligence in investigative work by the law enforcement officials concerned.
Fourth. Can accused-appellant totally escape criminal liability in this case?
The answer is in the negative. Accused-appellant's main defense is alibi. For alibi to prosper, he must prove not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the time the offense was committed.[34] This accused-appellant failed to do.
By his own account, he left the dance at around 10:00 in the evening to go to his home four kilometers away.[35] Walking with Mckinly Diada, he arrived home at past 11:00 o'clock.[36] (Per Diada's testimony, he looked at his watch and determined accused-appellant's arrival to be at about 11 p.m.)[37] Thus it was possible, assuming that accused-appellant had indeed gone home, for him to return to the dance and be present when Rudy Cadiente and Samuel Casido had an altercation at past midnight.
Moreover, there are contradictions in accused-appellant's alibi. He testified that when he left the dance at around 10:00 with Mckinly Diada, Samuel Casido was no longer there, having earlier gone with his uncle, Vicente Calidguid.[38] But William Devila, who was called to corroborate accused-appellant's alibi, belied the latter's claim by stating that Casido left with Vicente Calidguid two minutes after accused-appellant and Mckinly Diada had left. [39]It was therefore possible that accused-appellant stayed in the place until the time when the fight between Rudy Cadiente and Samuel Casido took place. Hence the testimony of Calidguid that accused-appellant actually struck Gilbert Cadiente with his cane knife.
There is also variance between accused-appellant's testimony and Mckinly Diada's account of the state of accused-appellant's household when accused-appellant arrived home. Accused-appellant claimed that when he arrived home, "everybody was asleep already,"[40] but Mckinly Diada said accused-appellant's wife and children "were still awake because his youngest child is an abnormal child which caused so much inconvenience because he is premature."[41]
Nor can accused-appellant profit from the affidavits of William Devila dated March 20, 1991 (Exh. 1-a), Alberto Cadiente (Exh. 2), and Rudy Cadiente (Exh. 3), which allegedly point to Casido as the assailant. Devila retracted his affidavit. For its part, the trial court, as already stated, excluded the affidavits from evidence for the reason that they had not been identified by the affiants.
Indeed, because Alberto Cadiente was not presented to testify, his affidavit could only constitute hearsay evidence. On the other hand, Rudy Cadiente was not confronted with his affidavit in which he allegedly stated that Samuel Casido was his brother's assailant which would cast doubt on his testimony in court that he did not see who his brother's assailant was. Thus Calidguid's eyewitness account that accused-appellant assaulted Gilbert Cadiente from behind stands unrebutted.[42]
Fifth. We go now to the determination of accused-appellant's criminal liability. We agree with the Solicitor General that the weapon used and the location of the wound which is at the back of the head, a vital part of the body, unmistakably show an intent to kill. However for some reason other than his own desistance, accused-appellant was not able to perform all the acts of execution necessary to consummate the killing, since the wound he had inflicted was not fatal. Accused-appellant ran away after delivering the blow to the back of the head of the victim. As all acts of execution necessary to produce the felony were not done, the crime for which he can be held liable is only that of attempted murder.[43]
Accused-appellant's attack was sudden and done without any provocation. Because it was made from behind, the victim was unable to defend himself. This circumstance constitutes treachery [44] which qualifies the crime to attempted murder.
Under Art. 51 of the Revised Penal Code, the penalty to be imposed upon the principal of an attempted crime shall be lower by two degrees than that prescribed for the consummated felony. Prior to its amendment by R.A. No. 7659, Art. 248 provided that the crime of murder shall be punished by reclusion temporal in its maximum period to death. In accordance with Art. 61(3), the penalty two degrees lower would be prision correccional maximum to prision mayor medium. Since there is no modifying circumstance, the medium period of the penalty, which is prision mayor minimum, should be imposed as the maximum penalty. Under Indeterminate Sentence Law, accused-appellant is entitled to a minimum penalty of arresto mayor in its maximum period to prision correccional in its medium period as the penalty next lower than the penalty for attempted murder.
WHEREFORE, the appealed decision is hereby MODIFIED, finding accused-appellant Ruperto Balderas y Cabusog guilty of attempted murder only and sentencing him to an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, with the accessory penalties provided by law, and to pay costs.
SO ORDERED.
Regalado, (Chairman), Romero, and Puno, JJ., concur.
Torres, Jr., J., on leave.
[1] Rollo, pp. 12-23, Records, pp. 198-208. The decision was penned by Judge Enrique C. Garrovillo.
[2] TSN of testimony of William Devila, pp. 2-3, 5-6, June 25, 1992.
[3] TSN of testimony of Vicente Calidguid, pp. 4-5, June 8, 1992.
[4] TSN of testimony of Rudy Cadiente, pp. 16-24, June 8, 1992.
[5] Id., p. 22.
[6] Exh. A, Records, p. 11. The medical certificate states that Gilbert died on March 16, 1991.
[7] TSN of testimony of Dr. Norberto J. Baldado, Jr. pp. 6-10, May 19, 1991.
[8] Exh. B-1-a, Records, p. 176.
[9] Exh. B-1-b.
[10] Exh. B-2-a.
[11] TSN of testimony of Ruperto Balderas, pp. 9-12; 14-16, June 23, 1992.
[12] TSN of testimony of Mckinly Diada, p. 4, June 24, 1992.
[13] TSN of testimony of William Devila, p. 3, June 28, 1992.
[14] Id., pp. 4, 12.
[15] Id., p. 5.
[16] Id., p. 8.
[17] TSN of testimony of SPO1 Jaime Tolete, pp. 4-5, June 23, 1992.
[18] Records, pp. 191-192.
[19] People v. Paguntalan, 242 SCRA 753 (1995).
[20] Appellee's Brief, p. 9, Rollo, p. 101.
[21] TSN of testimony of Dr. Norberto Baldado, Jr., pp. 8-9, May 19, 1992. (Emphasis added)
[22] See People v. Tolentino, 166 SCRA 469 (1988).
[23] TSN of testimony of Dr. Norberto Baldado, Jr., pp. 6-7, May 19, 1992.
[24] Id., p. 7.
[25] Rule 133, §4.
[26] People v. Dela Iglesia, 241 SCRA 718 (1995).
[27] TSN of testimony of Vicente Calidguid, pp. 5, 8-9, 15, June 8, 1992.
[28] People v. Jumao-an, 230 SCRA 70 (1994).
[29] People v. Clores, 125 SCRA 67 (1988).
[30] Appellee's Brief, p. 10, Rollo, p. 102.
[31] People v. Halili, 245 SCRA 340 (1995); People v. Laurel, 200 SCRA 465 (1991).
[32] Per TSN of testimony of Pfc. Jaime Tolete, pp. 3-6, June 23, 1992.
[33] TSN of testimony of Dr. Baldado, Jr., p. 7, May 19, 1992.
[34] E.g., People v. Bracamonte, 257 SCRA 380 (1996); People v. Evangelista, 256 SCRA 611 (1996); People v. Dela Cruz, 229 SCRA 745 (1994); People v. Dalanon, 237 SCRA 607 (1993).
[35] TSN of testimony of Ruperto Balderas, p. 10, June 23, 1992.
[36] Id., p. 16.
[37] TSN of testimony of Mckinly Diada, p. 9, June 24, 1992.
[38] TSN of testimony of Ruperto Balderas, p. 15, June 23, 1992.
[39] TSN of testimony of William Devila, p. 14, June 25, 1992.
[40] TSN of testimony of Ruperto Balderas, p. 16, June 23, 1992.
[41] TSN of testimony of Mckinly Diada, p. 8, June 24, 1992.
[42] E.g., People v. Arsenio Letigio, et al., G.R. No. 112968, February 13, 1997; People v. Rosario, 246 SCRA 658 (1995); People v. Abo, 230 SCRA 612 (1994); People v. Javier, 229 SCRA 638 (1994); People v. Calope, 229 SCRA 413 (1994).
[43] People v. Maguikay, 237 SCRA 587 (1994); People v. Tiu, 216 SCRA 140 (1992).
[44] Fuentes v. Court of Appeals, 253 SCRA 430 (1996); People v. Soldao, 243 SCRA 119 (1995).
It appears that in the evening of March 16, 1991 (not March 17, 1991 as some of the witnesses had mistakenly testified), William Devila met accused-appellant Ruperto Balderas and the latter's companions, Mckinly Diada and Samuel Casido, as the latter were on their way home from work in Sitio Matambok, Barangay Mandalupang in the Municipality of Manjuyod, Negros Oriental. The three, who are sugar cane plantation workers, were carrying their "lading" or cane knives.[2] William Devila invited the three to go with him to the Mayflower dance at Sitio Matambok and enjoy themselves "a little." The three agreed. They arrived at the dance hall at 8:00 in the evening and proceeded to a store beside the place where the dance was to be held and there had a drinking session. They consumed one flat bottle of Añejo Rhum compliments of accused-appellant.
What happened afterwards is subject of divergent accounts by the prosecution and the defense. The prosecution's version is as follows:
Per the testimony of Vicente Calidguid,[3] at around midnight, there was an altercation between Samuel Casido and Rudy Cadiente. The two were grappling for the hunting knife held by Casido. Calidguid saw Gilbert Cadiente approaching, presumably to help his brother Rudy, but Gilbert was struck from behind with a cane knife by accused-appellant Ruperto Balderas. Gilbert was hit on the back of the head. Seriously wounded, he ran towards the house of his brother Rudy which was 12 meters away. Calidguid said he was three to four meters away from the protagonists and that he was unaware of any previous quarrel between the deceased and the accused.
For his part, Rudy Cadiente, a barangay tanod, testified[4] that at around midnight of March 16, 1991, he saw Samuel Casido pull out a hunting knife in the middle of the dance floor. As he tried to disarm Casido, William Devila intervened and told him to leave Casido alone and he (Devila) would take care of Casido. As Rudy released Casido's hand, however, the latter boxed him. They then wrestled for possession of the hunting knife. As the two fought each other, the Petromax lamp nearby went off, rendering the place partly dark. Knowing that Casido had companions who were armed, Rudy Cadiente ran away and went home. He identified Casido's companions as accused-appellant Ruperto Balderas, Mckinly Diada, and William Devila. Upon reaching his house, Rudy saw his brother downstairs wounded. He had injuries on the nape, right foot, and in the middle of the chest. He took Gilbert to the Bais Emergency Hospital, but Gilbert was dead on arrival. In his cross-examination, Rudy Cadiente said that he did not see his brother attacked.[5]
Dr. Norberto J. Baldado, Jr., resident physician of the Bais General Hospital, issued a medical certificate[6] which listed the wounds suffered by Gilbert as follows:
1) Stab wound, 1 cm., penetrating 6th ICS along left parasternal line;
2) Incised wound, 3 cm., right foot distal third anterior;
3) Lacerated wound, 5 cm., occiput.
Dr. Baldado, Jr. testified[7] that Injury No. 1[8] located just below the nipple on the left side of the breast bone was "penetrating" and "most probably . . . fatal" as it "most probably" injured the blood vessels of the heart. Injury No. 2,[9] located on the right foot, was considered by Dr. Baldado, Jr. not fatal unless complications set in. Injury No. 3 [10] at the back part of the head was also considered by Dr. Baldado, Jr. not fatal because it only lacerated the soft tissue of the head and did not fracture the skull. According to Dr. Baldado, Jr., damage to the brain as a result of this injury was "possible but quite remote."
Accused-appellant's defense is basically alibi. He testified[11] that in the evening of March 16, 1991, while he, Samuel Casido, and Mckinly Diada were on their way to Cagihayan, Lamugong, Manjuyod, after coming from work in Alangilan, they met William Devila who invited them to go to the dance in Sitio Matambok. They decided to go with Devila, bringing with them their cane knives, which they used for work, wrapped in the sleeves of their jackets. Accused-appellant and his companions arrived at the dance at around 8:00 p.m. They proceeded to a small store where they had some drinks and stayed there until 10:00 p.m. Accused-appellant then went home with Mckinly Diada. Samuel Casido had gone with his uncle Vicente Calidguid, while William Devila had joined his gang. Accused-appellant's residence is four kilometers away from Sitio Matambok. Upon arriving at his house, accused-appellant went to sleep. Diada proceeded to his house farther down the road. The following morning, accused-appellant was told by Julio Palagtiw that he and Diada were wanted for the killing of Gilbert Cadiente. For this reason, he and Diada went to the Office of the Chief of Police of Manjuyod to verify the information, but no sooner had they arrived than they were taken into custody. Samuel Casido, who had earlier been arrested, pointed to them as his companions. Accused-appellant and Diada stayed in jail from March 19 to 24 until they were released on the 25th upon the intercession of Alberto and Rudy Cadiente and Devila. Accused-appellant's alibi was corroborated by Mckinly Diada[12] and William Devila.[13]
Devila's testimony added further details regarding the fight between Samuel Casido and Rudy Cadiente. He testified that after failing to stop the fight, he left the protagonists, but, as he stepped back, he bumped the lamp post and as a result the light was extinguished. He moved over to a place 30 meters away where there was a light and saw the fight break up as Samuel Casido ran away and Rudy Cadiente went home, although before going Rudy hurled a stone at Casido.[14] Rudy Cadiente's house could be seen from where the witness was. The people in the house were agog as they found Gilbert Cadiente crawling on the ground wounded.[15]
In his cross-examination, Devila was shown the affidavit he executed dated March 20, 1991. He denied having made the answer to Question No. 3, in which he pointed to Samuel Casido as having stabbed Gilbert Cadiente. He said that he had merely been made to make the answer by Rudy Cadiente.[16]
The defense also called as witness SPO1 Jaime Tolete, who had filed the original criminal complaint against accused-appellant. Tolete testified concerning entries in the police blotter of the PNP Police Station of Manjuyod. The entries read:[17]
A (Witness reads) "Brgy. Capt. Jesus Cadalso Balasabas of Brgy. Mandalupang, reported to this unit at about 1701H March 1991 while holding a benefit dance on the above-mentioned barangay and after the dance ended they found outside the dancing hall that one Gilbert Cadiente, 17 years old, single and a resident of Sitio Matambok, Manjuyod was lying on the ground between life and death and thereby his elder brother, Rudy Cadiente saw him and found out that said victim has stab wound at the center of his breast and allegedly stabbed by unknown person/persons and said victim was rushed to the hospital for treatment but already died while on the way to the hospital. Sgd. Dominador Acabal."On July 29, 1992, the trial court rendered judgment finding accused-appellant guilty beyond reasonable doubt of murder and sentencing him to reclusion perpetua, and ordering him to indemnify the heirs of Gilbert Cadiente in the amount of P50,000.00 and to pay costs.
"In reference to Entry 0582 brother of victim, Rudy Cadiente, a Brgy. Ronda came to this office and told the investigator that he allegedly saw the assailants of his younger brother wherein he further stated that these persons were seen at the dancing area of said brgy. and were making trouble thereat. The ff. were (1) Samuel Casido (2) Perto Balderas (3) Misoy (surname unknown) Sgd. SPO3 Errol Pineda."
"Upon follow-up by elements of this unit, Samuel Casido was picked up at this residence and stated that he was at the scene with the ff. persons that were his companions, namely: William Devila, Perto Balderas and Mckinly Diada, all residents of Sit. Cagihayan, Brgy. Lamogong, this municipality. He further stated that this William Devila struck first the petromax that gave light to the dancing area. Samuel Casido is detained in jail for further investigation."
Another entry: "In reference to Entry 0582, page 090 re murder case that on or about 0345H 18 March 1991 one Restituto Palagtiw, a Brgy. Ronda of Brgy. Lamogong, this municipality, brought to this station 2 persons in the name of Mckinly Diada and Ruperto Balderas, all of Sit. Cagihayan, Brgy. Lamogong this municipality. Subject persons were the subject of said murder case and were detained for further investigation."
Another entry: "In reference to Entry 0582, 0584 and 0585 dtd. 17 March 1991 re hacking and stabbing to death of one Gilbert Cadiente, suspect was apprehended by element of this unit one William Devila y Picante and detained for further investigation."
"Reference to Entry 0582, 0584, 0585, 0588 and 0592 dtd. 17 & 18 March 1991 re murder case at Mandalupang this municipality, turned over to this unit a plastic bag with cane knife, clothing and 2 plastic plates owned by Samuel Casido by Brgy. Ronda Rudy Cadiente. Sgd. Dominador Acabal." That is all.
In its decision, the RTC disregarded Exhs. 1-4 of the defense, which were the affidavits taken during the preliminary investigation. Exh. 1 was William Devila's affidavit in the dialect dated May 22, 1991, retracting his affidavit dated March 20, 1991 (Exh. 1-a). Exh. 2 was Alberto Cadiente's affidavit, while Exh. 3 was that of Rudy Cadiente. Xerox copies of certain pages of the police blotter (Exhs. 4 and 4-a) were likewise excluded.[18] The court explained that -
Exhibit "1" is inadmissible as evidence as it is not accompanied by a translation in an official language as required by Section 33, Rule 132 of the Revised Rules on Evidence. Exhibits "1-a," "2" and "3" which are alleged affidavits are not only unidentified by the affiants, but have not been testified to as authentic by the person who certified therein that they are true copies. Exhibit "4" is not certified as a faithful reproduction of the original entries which it purports to represent. It is, therefore, worthless as secondary evidence.With the exception of Devila's affidavit, the affidavits pointed to Samuel Casido as the person who assaulted Gilbert Cadiente during the dance. In its decision, the RTC stated:
Exhibits "1" to "4," therefore, cannot be considered in favor of Accused by reason of the foregoing infirmities.
While the evidence has amply shown the treacherous participation of Accused Ruperto Balderas in inflicting injuries on Gilbert Cadiente, justice has not been fully served by the absence of a determination of the author or authors of the other injuries sustained by said victim as found by the medical officer. During the trial the prosecution has passed sub-silencio the matter of the "stab wound" in particular which the medical officer described as "most probably fatal" among the three injuries. It must have been the active cause of the death of Gilbert Cadiente, yet no one has been called upon to answer for it. This is a sad commentary on the criminal justice system in this jurisdiction. Accused Ruperto Balderas should not suffer alone for the killing of Gilbert Cadiente, for all that he may have done to said victim. A little extra effort, one that is sincere, well-meaning and diligent, is all that is needed approximate the administration of justice to the people of the State who have been offended by the criminal killing of one of them.Accused-appellant appealed, assigning the following errors as having been committed by the trial court:
It is, therefore, suggested that another inquiry by the Police and by the office of the Provincial Prosecutor be undertaken for the purpose of identifying the person or persons responsible for the infliction of the "stab wound" and the "incised wound" which contributed to the death of Gilbert Cadiente so that he or they may be made to answer for the same.
I. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.Accused-appellant lays store by the fact that, during preliminary investigation, witnesses including the victim's brother Rudy Cadiente, pointed to Samuel Casido as the one who attacked the victim with a cane knife and an icepick. He argues that even granting that he indeed hacked the victim, he could not be held liable for murder as the wound he inflicted was not fatal.
II. GRANTING WITHOUT ADMITTING THAT THE ACCUSED HACKED THE VICTIM ONCE AT THE BACK OF HIS HEAD ACCORDING TO THE LONE TESTIMONY OF VICENTE CALIDGUID, THE SAME WAS NOT A FATAL WOUND AS TESTIFIED BY THE DOCTOR.
First. As in all criminal prosecutions, the conviction must be based on the strength of the prosecution's evidence and not on the weakness or absence of evidence of the defense.[19] In this case, the only prosecution eyewitness, Vicente Calidguid, testified that accused-appellant struck the victim Gilbert Cadiente with a cane knife once, hitting him on the nape. The wound inflicted, which the doctor identified as Wound No. 3, was according to him not a fatal one.
The Solicitor General argues that infliction of this wound is sufficient to convict accused-appellant of murder, because it "could have caused brain injury as admitted by the attending physician [and] contributed as cause of the death of the victim."[20]
This possibility, however, is a remote one as the following testimony of Dr. Norberto Baldado, Jr. explains:[21]
Q Let us proceed to Finding No. 3 doctor, please elaborate.The Court cannot convict accused-appellant of murder on this "remote" possibility that Injury No. 3 could have caused accused-appellant's death. Indeed, the prosecution's evidence in this regard, consisting of Dr. Baldado, Jr.'s testimony, fails to establish that the act of the accused-appellant produced the injury constituting the penal offense for which he stands convicted, i.e., murder.[22]
A Lacerated wound, 5 cm. occiput, it is somewhere here (witness indicating in the sketch).
Q Please indicate that in your head.
A (Witness touching the back part of his head).
Q What instrument could have caused this type of wound, doctor?
A A sharp-bladed instrument.
Q Are you familiar with the bolo used in cutting sugar cane?
A Yes.
Q Is it possible that that type of instrument could have caused this kind of injury?
A It is possible because it is a bladed instrument.
Q And do you consider this as a fatal wound, doctor?
A No, it is not fatal.
Q Did you try to find out doctor, if there was any fracture of the skull as a result of the injury?
A Yes, and I found that there was no fracture underlying the injury.
Q Did you try to find out doctor, other fractures that might have resulted in this kind of injury, your third finding?
A Well, it is a head injury although how subtle, the victim might sustain a cerebral or brain injury such as hemorrhage or hematoma formation.
Q In this particular case doctor, did you try to find out whether probably that type of injury precipitated the death of the victim?
A It is possible although it may be remote because this type of injury has not caused a skull fracture as such.
Q Is it almost necessary that in this type of injury especially located on the head, is it almost necessary that there should be a fracture of the skull that brain injury will not . . . ?
A It is not necessary that the fracture should sustain a brain injury. However in this case, the instrument used was a bladed instrument and it seems improbable that the head was hit so hard by the instrument the skull was not fractured, it was only the soft tissue there that was lacerated, the soft tissue sustained by the victim.
Q But as you said there was a possibility that as a result of this injury and considering its nature, brain damage could result?
A More so with the blunt injury.
Q And by that answer doctor, you mean that it is possible?
A It is possible but quite remote.
Dr. Baldado, Jr. found it was Injury No. 1, the stab wound located on the left side of the victim's chest, which was "penetrating" and "most probably . . . fatal because right beneath that area [are] the blood vessels of the heart and there are many blood vessels there and most probably it was injured by that stab wound."[23]
Since there is no eyewitness account regarding the infliction of the fatal wound, it becomes necessary to consider if there is circumstantial evidence to make accused responsible for the same. The circumstances that might possibly tie accused-appellant to this wound are the following: (1) the fact that accused-appellant attacked Gilbert Cadiente and wounded him on the back of his head; (2) the fact that the fatal wound on the chest was caused by a "pointed instrument;"[24] and (3) the fact that accused-appellant's "lading" or cane knife was a "pointed instrument."
These circumstances must be appraised in light of the requirements of the Rules of Court for sufficiency of circumstantial evidence, i.e., (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[25] The circumstances must form an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the guilty person.[26]
First of all the fact that accused-appellant wounded Gilbert Cadiente does not necessarily mean that he also inflicted all the wounds which the victim was found to have suffered. Indeed Vicente Calidguid's testimony was that accused-appellant hit Gilbert only once after which both he and his victim ran away. Calidguid's testimony was as follows:[27]
FISCAL HERMOSA:It is quite possible that after hitting the victim once, accused-appellant ran after the victim and wounded him again. But this is a conjecture and a surmise which cannot stand for proof, much less be the basis of a conviction. Another person could have inflicted the fatal stab. In fact the trial court suspected there was at least another person responsible for Gilbert Cadiente's killing and it said so in its decision quoted above.
Q: How many times did Ruperto Balderas hack Gilbert Cadiente?
A: Once.
Q: What happened to Gilbert Cadiente upon being hit by the hack of Ruperto Balderas?
A: He went to the house of his brother Rudy Cadiente.
Q: What about Ruperto Balderas, what did he do after hacking Gilbert Cadiente?
A: They ran away.
Q: You said "they", whom are you referring as "they"?
A: He (witness pointing to the accused).
xxx xxx xxx
ATTY. GARCIA:
Q: And Gilbert Cadiente upon being hit by the blow of the cane knife at his head went towards the house of his elder brother, am I right?
A: Yes.
Q: And where was the accused then at that time when this Gilbert Cadiente went to the house of his elder brother?
A: He ran.
Q: Towards where?
A: He went home.
Q: How about the cane knife, where was it?
A: He brought it along with him.
We next go to the matter of the weapon used to inflict the wound in question, a "sharp-pointed instrument" which penetrated to the heart of the victim. There were a number of persons present at the dance who also had cane knives, among whom were accused-appellant's companions, Samuel Casido and Mckinly Diada.
Moreover, the medical certificate describes the fatal wound as "1 cm. long." It is doubtful whether a cane knife which has a maximum width of five inches, although possessing a sharp pointed end, can leave a surface wound of that minuscule length if it had to penetrate to the heart, thereby damaging the blood vessels thereof. A more probable weapon would be an icepick.
In sum, the circumstantial evidence in this case does not point with certainty to accused-appellant as responsible for the fatal wound suffered by Gilbert Cadiente. In this, as in all criminal cases, speculation and probabilities cannot take the place of proof required to establish guilt of an accused beyond reasonable doubt.[28] Suspicion, no matter how strong, can not sway judgment.[29] Here, the means and the opportunity to inflict the fatal wound were not accused-appellant's alone to the exclusion of all others.
Second. The trial court nonetheless found accused-appellant guilty of the murder of Gilbert Cadiente because of his "treacherous participation in inflicting injuries on Gilbert Cadiente." This would be correct if there was a conspiracy. But, as noted by the Solicitor General, the information did not allege conspiracy and the number of the author/authors of the other injuries as in fact, it charged accused-appellant of having inflicted all the wounds.[30]
At any rate, conspiracy must be proven beyond reasonable doubt.[31] In this case not only was there no evidence of prior agreement. There was also no showing of concerted action taken to kill Gilbert Cadiente.
Third. Although there were many present at the dance who could possibly have witnessed the killing of Gilbert Cadiente, the prosecution was able to present only one eyewitness, Vicente Calidguid, and that was only with respect to Injury No. 3, a non-fatal wound. The police seized a cane knife and certain clothing in relation to the incident,[32] but for one reason or another they did not produce them during trial. On the other hand, the doctor who executed a medical certificate could only talk of probabilities as to the cause of the victim's death for lack of an autopsy.[33] This gap in the prosecution's evidence moved the trial court to call for zeal and diligence in investigative work by the law enforcement officials concerned.
Fourth. Can accused-appellant totally escape criminal liability in this case?
The answer is in the negative. Accused-appellant's main defense is alibi. For alibi to prosper, he must prove not only that he was not present at the scene of the crime but also that it was physically impossible for him to have been present there at the time the offense was committed.[34] This accused-appellant failed to do.
By his own account, he left the dance at around 10:00 in the evening to go to his home four kilometers away.[35] Walking with Mckinly Diada, he arrived home at past 11:00 o'clock.[36] (Per Diada's testimony, he looked at his watch and determined accused-appellant's arrival to be at about 11 p.m.)[37] Thus it was possible, assuming that accused-appellant had indeed gone home, for him to return to the dance and be present when Rudy Cadiente and Samuel Casido had an altercation at past midnight.
Moreover, there are contradictions in accused-appellant's alibi. He testified that when he left the dance at around 10:00 with Mckinly Diada, Samuel Casido was no longer there, having earlier gone with his uncle, Vicente Calidguid.[38] But William Devila, who was called to corroborate accused-appellant's alibi, belied the latter's claim by stating that Casido left with Vicente Calidguid two minutes after accused-appellant and Mckinly Diada had left. [39]It was therefore possible that accused-appellant stayed in the place until the time when the fight between Rudy Cadiente and Samuel Casido took place. Hence the testimony of Calidguid that accused-appellant actually struck Gilbert Cadiente with his cane knife.
There is also variance between accused-appellant's testimony and Mckinly Diada's account of the state of accused-appellant's household when accused-appellant arrived home. Accused-appellant claimed that when he arrived home, "everybody was asleep already,"[40] but Mckinly Diada said accused-appellant's wife and children "were still awake because his youngest child is an abnormal child which caused so much inconvenience because he is premature."[41]
Nor can accused-appellant profit from the affidavits of William Devila dated March 20, 1991 (Exh. 1-a), Alberto Cadiente (Exh. 2), and Rudy Cadiente (Exh. 3), which allegedly point to Casido as the assailant. Devila retracted his affidavit. For its part, the trial court, as already stated, excluded the affidavits from evidence for the reason that they had not been identified by the affiants.
Indeed, because Alberto Cadiente was not presented to testify, his affidavit could only constitute hearsay evidence. On the other hand, Rudy Cadiente was not confronted with his affidavit in which he allegedly stated that Samuel Casido was his brother's assailant which would cast doubt on his testimony in court that he did not see who his brother's assailant was. Thus Calidguid's eyewitness account that accused-appellant assaulted Gilbert Cadiente from behind stands unrebutted.[42]
Fifth. We go now to the determination of accused-appellant's criminal liability. We agree with the Solicitor General that the weapon used and the location of the wound which is at the back of the head, a vital part of the body, unmistakably show an intent to kill. However for some reason other than his own desistance, accused-appellant was not able to perform all the acts of execution necessary to consummate the killing, since the wound he had inflicted was not fatal. Accused-appellant ran away after delivering the blow to the back of the head of the victim. As all acts of execution necessary to produce the felony were not done, the crime for which he can be held liable is only that of attempted murder.[43]
Accused-appellant's attack was sudden and done without any provocation. Because it was made from behind, the victim was unable to defend himself. This circumstance constitutes treachery [44] which qualifies the crime to attempted murder.
Under Art. 51 of the Revised Penal Code, the penalty to be imposed upon the principal of an attempted crime shall be lower by two degrees than that prescribed for the consummated felony. Prior to its amendment by R.A. No. 7659, Art. 248 provided that the crime of murder shall be punished by reclusion temporal in its maximum period to death. In accordance with Art. 61(3), the penalty two degrees lower would be prision correccional maximum to prision mayor medium. Since there is no modifying circumstance, the medium period of the penalty, which is prision mayor minimum, should be imposed as the maximum penalty. Under Indeterminate Sentence Law, accused-appellant is entitled to a minimum penalty of arresto mayor in its maximum period to prision correccional in its medium period as the penalty next lower than the penalty for attempted murder.
WHEREFORE, the appealed decision is hereby MODIFIED, finding accused-appellant Ruperto Balderas y Cabusog guilty of attempted murder only and sentencing him to an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, with the accessory penalties provided by law, and to pay costs.
SO ORDERED.
Regalado, (Chairman), Romero, and Puno, JJ., concur.
Torres, Jr., J., on leave.
[1] Rollo, pp. 12-23, Records, pp. 198-208. The decision was penned by Judge Enrique C. Garrovillo.
[2] TSN of testimony of William Devila, pp. 2-3, 5-6, June 25, 1992.
[3] TSN of testimony of Vicente Calidguid, pp. 4-5, June 8, 1992.
[4] TSN of testimony of Rudy Cadiente, pp. 16-24, June 8, 1992.
[5] Id., p. 22.
[6] Exh. A, Records, p. 11. The medical certificate states that Gilbert died on March 16, 1991.
[7] TSN of testimony of Dr. Norberto J. Baldado, Jr. pp. 6-10, May 19, 1991.
[8] Exh. B-1-a, Records, p. 176.
[9] Exh. B-1-b.
[10] Exh. B-2-a.
[11] TSN of testimony of Ruperto Balderas, pp. 9-12; 14-16, June 23, 1992.
[12] TSN of testimony of Mckinly Diada, p. 4, June 24, 1992.
[13] TSN of testimony of William Devila, p. 3, June 28, 1992.
[14] Id., pp. 4, 12.
[15] Id., p. 5.
[16] Id., p. 8.
[17] TSN of testimony of SPO1 Jaime Tolete, pp. 4-5, June 23, 1992.
[18] Records, pp. 191-192.
[19] People v. Paguntalan, 242 SCRA 753 (1995).
[20] Appellee's Brief, p. 9, Rollo, p. 101.
[21] TSN of testimony of Dr. Norberto Baldado, Jr., pp. 8-9, May 19, 1992. (Emphasis added)
[22] See People v. Tolentino, 166 SCRA 469 (1988).
[23] TSN of testimony of Dr. Norberto Baldado, Jr., pp. 6-7, May 19, 1992.
[24] Id., p. 7.
[25] Rule 133, §4.
[26] People v. Dela Iglesia, 241 SCRA 718 (1995).
[27] TSN of testimony of Vicente Calidguid, pp. 5, 8-9, 15, June 8, 1992.
[28] People v. Jumao-an, 230 SCRA 70 (1994).
[29] People v. Clores, 125 SCRA 67 (1988).
[30] Appellee's Brief, p. 10, Rollo, p. 102.
[31] People v. Halili, 245 SCRA 340 (1995); People v. Laurel, 200 SCRA 465 (1991).
[32] Per TSN of testimony of Pfc. Jaime Tolete, pp. 3-6, June 23, 1992.
[33] TSN of testimony of Dr. Baldado, Jr., p. 7, May 19, 1992.
[34] E.g., People v. Bracamonte, 257 SCRA 380 (1996); People v. Evangelista, 256 SCRA 611 (1996); People v. Dela Cruz, 229 SCRA 745 (1994); People v. Dalanon, 237 SCRA 607 (1993).
[35] TSN of testimony of Ruperto Balderas, p. 10, June 23, 1992.
[36] Id., p. 16.
[37] TSN of testimony of Mckinly Diada, p. 9, June 24, 1992.
[38] TSN of testimony of Ruperto Balderas, p. 15, June 23, 1992.
[39] TSN of testimony of William Devila, p. 14, June 25, 1992.
[40] TSN of testimony of Ruperto Balderas, p. 16, June 23, 1992.
[41] TSN of testimony of Mckinly Diada, p. 8, June 24, 1992.
[42] E.g., People v. Arsenio Letigio, et al., G.R. No. 112968, February 13, 1997; People v. Rosario, 246 SCRA 658 (1995); People v. Abo, 230 SCRA 612 (1994); People v. Javier, 229 SCRA 638 (1994); People v. Calope, 229 SCRA 413 (1994).
[43] People v. Maguikay, 237 SCRA 587 (1994); People v. Tiu, 216 SCRA 140 (1992).
[44] Fuentes v. Court of Appeals, 253 SCRA 430 (1996); People v. Soldao, 243 SCRA 119 (1995).