THIRD DIVISION
[ G.R. No. 108491, July 02, 1998 ]PEOPLE. v. SERGIO AMAMAMPANG +
PEOPLE OF THE PHILIPPINES. PLAINTIFF-APPELLEE, VS. SERGIO AMAMAMPANG, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE. v. SERGIO AMAMAMPANG +
PEOPLE OF THE PHILIPPINES. PLAINTIFF-APPELLEE, VS. SERGIO AMAMAMPANG, ACCUSED-APPELLANT.
D E C I S I O N
KAPUNAN, J.:
In the early morning of 8 November 1991, SPO1 Placido Flores, a member of the Philippine National Police in Carmen, Bohol, was fatally hacked with a scythe and shot with a .38 caliber revolver in the home of appellant Sergio Amamangpang in Guadalupe, Carmen,
Bohol. On 17 January 1992, appellant was charged with the murder of Flores in an information which read, thus:
The prosecution established the following facts:
On 8 November 1991, at the police station in Carmen, Bohol, SPO1 Placido Flores sought permission from PO3 Gregorio Alimpolos to go to the house of appellant with "trustee-prisoner" Ellorde Galacio at around 1:00 a.m.. It was the birthday of appellant's wife, Sinforiana and Flores was bringing along Elorde to help roast the Amamangpang's pig that was earlier butchered.[2]
On their way to appellant's residence abroad the victim's patrol jeep, Flores and Galacio passed Manuel Noculan who was walking towards his carinderia at the public market to see to the newly harvested palay he had deposited there. Flores stopped and asked Noculan to Accompany them to appellant' house.[3]
Upon reaching the Amamangpang residence, Flores and Galacio entered the house of Noculan. Noculan followed and upon entering saw Flores sitting on the stairs with his head resting on the edge of a table. Noculan seated himself outside the house while Galacio stood beside the door. Appellant was then standing near Sinforiana who was cooking in the kitchen.[4]
Suddenly, from inside the house, Noculan heard a child shout. "Father! Don't!" Noculan immediately stood up and, peering through the door, saw appellant holding a scythe and about to strike Flores who was still wearing his fatigue pants and a white T-shirt with PNP emblem. Appellant's daughter, Genalyn had her arms around his (appellant's) waist.[5] Shocked by what he had witnessed, Noculan ran and hid. While running, he heard several gunshots.[6]
At the police station around 250 meters away from the Amamangpang residence, PO3 Alimpolos heard two gun shots followed by a rapid succession of four shots, alerting him and another patrolman. Thereafter, appellant, in bloody clothes and accompanied by his daughter, arrived at the police station and surrendered himself to Alimpolos. He admitted to the latter that he had killed Flores but gave no reason why. Appellant surrendered a .38 Smith and Wesson revolver and empty shells.[7]
Thereafter, police officers Jovencio Ybañez, Alfredo Llongas and Magdaleno Dano were dispatched to investigate the incident. At appellants house, they retrieved the scythe.[8]
Dr. Amalia G. Añana, municipal health officer of Carmen, Bohol, who was summoned to the crime scene, found the lifeless body of the victim lying in appellant's bedroom at the second storey of his house.[9] Her postmortem report reveals the following findings:
For his part, appellant admitted killing Flores but claimed that he did it in defense of his wife's honor. As an alternative defense, appellant contended that his action was justified under Article 247 of the Revised Penal Code. After he caught his wife, Sinforiana and Flores engaged in the sexual act on that fateful day. He narrated the events as follows:
In the evening of 7 November 1991, in honor of his wife's birthday the next day, appellant butchered a pig with the assistance of Flores and Galacio. When his wife, Sinforiana and his daughter, Genalyn arrived, the former prepared their supper. After eating, Genalyn went to bed and rest (appellant, Flores, Gelacio and Sinforiana) drank tuba until midnight. Subsequently, Flores prodded appellant to sleep in his (appellant's) store at the public market with Galacio o guard the store against robbers. At first, appellant refused because he had to wake up early to roast the butchered pig. However, he changed his mind when Flores assured him that he would wake him up at dawn when he (Flores) reported for duty.[12]
That settled, Flores, Galacio and appellant boarded the patrol jeep. After dropping off the two men at the public market, Flores proceeded home. Appellant, however, discovered that he left his store key at home. He tried to force open the padlock but the effort proved futile. Resigned, he sat beside Galacio who was sleeping on the bamboo bed near the store. Minutes later, however, appellant felt cold, so he woke up Galacio and they decided to go home.[13]
Upon reaching appellant's house, Galacio excused himself to answer the call of nature. When appellant entered through the unfinished door at the back of his house, he heard a noise ("kasikas"). He proceeded upstairs and lighted a match. To his astonishment, he saw the half-naked Flores on top of his wife who still had her clothes on. Thereupon, appellant unsheathed his scythe and hacked the victim on the neck. He attempted to strike a second time but the handle of the scythe broke off. Flores was then lying face down in a crawling position.[14] Appellant jumped on Flores' back who tried "to draw his gun."[15] The two grappled for possession thereof. After wresting the gun from Flores, appellant ran downstairs. Flores pursued him. Appellant then faced Flores and shot him on the forehead. Flores "retraced his way" and fell down. Because of his anger, appellant consumed all the gun's bullets on the fallen Flores.[16]
Corroborating appellant's story, his wife, Sinforiana, testified that after supper she drank a little tuba with her husband, Flores and Galacio. At midnight, her husband followed the advice of Flores to spend the night in their store. After her husband, Flores and Galacio left, she went to sleep with her daughter.
Sinforiana was awakened when Flores "tried to abuse" her. At first, Flores held her, telling that he wanted to borrow money. She told him that she had no money as they had just made purchases for their store. Responding to what she said, Flores told her that he had long developed his love foe her. She thus retorted, "Pre, are you not foolish? We are close friends, why are you doing this to me?" But Flores removed his pants and briefs and embraced her. When Sinforiana tried to resist, Flores threatened to kill her. While Flores was on top of her, and embracing her, appellant arrived, unsheathed his scythe and hacked Flores. Freed from his embrace, Sinforiana ran away followed by her daughter.[17]
Twelve-year-old Genalyn Amamangnpang testified that she was awakenend by a noise and her mother saying, "Pre, why are you still here when in fact you already went home?" She saw her "manimoy" (godfather) Flores completely naked. She told him, "maninoy, what are you going to do with my mother?" Flores answered, "Keep quiet there Genalyn because if you will not, I will shot you." (sic) Just then, her father arrived and pulled out his scythe. Genalyn ran outside to fetch a policeman as her father instructed. She ran towards the public market but, not seeing any policeman, she went back home. Upon her arrival, her father told her to go with him to surrender and, together, they proceeded to the municipal building where the police station was located.[18]
On 8 October 1992, the RTC of Bohol, Branch 1 Tagbilaran City rendered a decision convicting appellant of murder. The trial court ruled that appellant's act of "emptying the bullets of the gun" on the body of the victim, even when the latter was "already helpless and severely wounded on the nape" constituted treachery. Likewise, the trial court appreciated nighttime as a generic aggravating circumstance and imposed the penalty of reclusion perpetua upon appellant. The dispositive portion of the decision reads, thus:
Appellant contends that the pictures taken by the investigators, depicting the victim's body lying naked in the bedroom floor, were tampered with and suppressed by the prosecution. In support, appellant cites the following testimony of Dr. Añana:
Appellant also questions the failure of the prosecution to present the investigators and Galacio as witnesses.
Section 5, Rule 110 of the Rules of Court expressly provides that all criminal actions shall be prosecuted under the direction and control of the fiscal. Under this provision, the defense may not dictate on the prosecution the choice of the latter's witnesses as it is the prerogative of each party to determine which evidence to submit.[22]
Appellant further claims that it was Galacio's role to ensure that he (appellant) would stay at the market while Flores went back to appellant's house to "perpetrate his "lascivious scheme." If this was their theory, then, it should have been the defense which presented Galacio as witness, not the prosecution.
Proceeding to his main defense, appellant invokes the justifying circumstance of defense of relative under Article 11 (2) of the Revised Penal Code:
In the case at bar, appellant miserably failed to hurdle this test. His claim is belied by the physical evidence on record. First, appellant's contention that he found Flores with his wife in the bedroom at the second floor of the house (the place where he cleaved Flores with his scythe) is negated by the fact that blood was found splattered on the table, the bamboo floor and the stairs in the first floor of the house as unmistakably shown in the pictures taken by amateur photographer Wilberto Dag-um.[24] We find incredulous appellant's explanation that after wrestling the gun from Flores he ran downstairs with Flores in pursuit and when he turned and shot Flores on the forehead the latter was able to "retrace his way" to the bedroom on the second floor of the house before falling down. It must be recalled that Flores was already severely wounded at the nape. Coupled with the gunshots wound on his forehead, which as testified to by Dr. Añana, was enough to have caused instantaneous death,[25] it is, therefore, inconceivable that he was still able to climb back up the stairs and finally collapse in the bedroom.
On the contrary, the pictures are consistent with Noculan's testimony that he saw the bloodied Flores prostrate on the ground in the first floor of the house and appellant poised to strike Flores again.[26]
Second, appellant's contention that he cut Flores only once with his scythe is repudiated by Dr. Añana findings that the victim's body bore three (3) incised wounds: at the nape and upper lip.
Third, Dr, Añana testified that the trajectory of the bullet wounds was "downward", hence "the assailant must be higher in position" than the victim.[27] She opined that the victim may have been shot while already lying prostrate on the floor.[28]
Finally, the testimony of appellant's daughter that Flores was completely naked.[29] Is materially inconsistent with the findings of Dr. Añana that Flores was wearing a shirt and was naked only from the waist down.[30] It also contradicts appellant's own testimony that when he was being pursued by Flores, the latter was only half-naked wearing a t-short but no brief and trousers.[31]
From the foregoing. We find more credible the theory of the prosecution that Flores was killed in the first floor of the house, as testified to by Noculan. His body, however, was subsequently carried upstairs to the bedroom and was stripped of his pants and underwear to make it appear that appellant caught Flores in the act of abusing his wife.
Appellant's story, as previously discussed, is full of material discrepancies. Appellant testified that he caught Flores on top of his wife in their bedroom on the second floor and that he reacted by hacking Flores with his scythe. But when the scythe's handle broke off, appellant jumped on Flores' back and they grappled for possession of Flores' gun. When Dr. Añana and the investigators arrived, however, they testified that" the things inside the room was (sic) still in order, the Sto. Niño and the lamp."[32]
Likewise, when Dr, Añana discovered Flores' body, she found his pants by his left foot and his underwear stripped down to his ankles.[33] But how could Flores have his underwear around his ankles at the time his body was found when appellant specifically stated that Flores was not wearing his trousers and brief when he chased appellants and the latter shot him. Thus, the only explanation for this is that appellant indeed altered the physical evidence so as to make it conform to his defense. It must be pointed out that nobody reported the crime. The police become aware of the incident only after appellant surrendered himself. Hence, appellant had the time and opportunity to move the body, remove the pants, strip the underwear down to the ankles and concoct the story of defending his wife from the lecherous intentions of Flores.
The alternative defense presented by appellant is Art. 247 of the revised Penal Code which provides:
He asserts that his action was the result of anger and passion after discovering his wife and his friend, Flores, engaged in sexual intercourse in his own home.
Appellant's assertion is unmeritorious. His two bases for exoneration are markedly inconsistent with each other. On one hand, he claims that he was defending his wife from Flores who was trying to force himself upon her. On the other, he gives the implication that his wife and Flores were having an illicit affair. Such contradictory theories are a manifest indication that appellant's defenses are nothing but mere concoctions. Besides, appellant's alternative defense is inconsistent with the testimonies of his wife (Sinforiana) and daughter (Genalyn) that Flores threatened to kill them if they refused to accede to his wishes.[34]
The trial court, however, erred in finding that the crime was committed with treachery. Treachery, which should be proven as clearly as the crime itself to be considered a qualifying circumstance,[35] was not conclusively established in this case. According to prosecution eyewitness Noculan, when he was alerted to the assault by the warning shout of appellant's daughter and he peeped inside the house, he saw the victim already prostrate on the bamboo floor, blood oozing form his neck and about to be struck by the appellant. Since the lone eyewitness failed to witness the initial attack inflicted upon the victim, treachery cannot be considered a qualifying circumstance.[36]
In People v. Beltran,[37] we reiterated the rule that:
We agree with the Solicitor General that the aggravating circumstance of nighttime was not present when the crime was committed. No evidence was adduced to indicate that nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or to insure his immunity from capture.[38] The fact that the crime took place at night was just incidental.
The mitigating circumstance of voluntary surrender should be considered in applellant's favor because of the concurrence of the following requisites: (a) the offender had not actually been arrested; (b) the offender surrendered himself to a person in authority or to an agent of a person in authority; and (c) the surrender was voluntary.[39]
PO3 Alimpolos distinctly testified that appellant, on his own volition, appeared at the police station and surrendered himself shortly after he had killed Flores.[40] By the presence of this mitigating circumstances and there being no generic aggravating circumstance, the penalty imposable shall be the minimum period of reclusion temporal.[41] Applying the indeterminate Sentence Law, appellant shall suffer the penalty of prision mayor, minimum as the minimum penalty to reclusion temporal, minimum as the maximum penalty.
WHEREFORE, appellant Sergio Amamangpang is hereby found guilty beyond the reasonable doubt of the crime of homicide for the killing of SPO1 Placido Flores and shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor minimum as minimum penalty to twelve (12) years and one (1) day of reclusion temporal minimum as maximum penalty. The monetary awards to the heirs of SPO1 Placido Flores imposed upon appellant by the trial court are AFFIRMED. Costs against appellant.
SO ORDERED
Narvasa, C.J., (Chairman), Romero, and Purisima, JJ., concur.
[1] Rollo, pp. 4-5.
[2] TSN, 9 June 1992, pp. 26-28.
[3] Id., at 5-6.
[4] Id., at 8-9.
[5] Id., at 10-12 & 21.
[6] Id., at 12.
[7] Id., at 28-30.
[8] Exh. "C."
[9] TSN, 2 July 1992, p. 3.
[10] Exh. "F," Original Records, Documentary Evidence, p. 5.
[11] Exh. "H," Id., at 8.
[12] TSN, 4 September 1992, pp. 2-4.
[13] Id., at 4.
[14] Id at 5, 18-20.
[15] Id., at 6.
[16] Id., at 8.
[17] Id., at 34-36.
[18] TSN, 20 August 1992, pp. 6-10.
[19] Rollo, pp 18-19.
[20] Id., at p. 34.
[21] TSN, 2 July 1992, p. 15.
[22] People v. De los Reyes, 229 SCRA 439 (1994), citing People v. Carpio, 207 SCRA 569 (1992)
[23] People v. Bausing, 199 SCRA 355 (1991).
[24] Exh. "A" and "B," Original records, Documentary Evidence, pp. 1-2.
[25] TSN, 2 July 1992, p. 9.
[26] TSN, 9 June 1992, p. 21.
[27] Id.,at 7.
[28] Ibid.
[29] TSN., 20 August 1992, p. 7.
[30] TSN, 2 June 1992, p.11.
[31] TSN, 4 September 1992, p. 22
[32] TSN, 2 July 1992, p. 12
[33] Id., at 14.
[34] TSN, 4 September 1992, pp. 35-36; TSN,20 August 1992, pp. 7-8.
[35] People v. Ablao, 229 SCRA 280 (1994).
[36] People v. Salvador, 224 SCRA 819 )1993); People v. Cordero, 217 SCRA 1 (1993).
[37] 260 SCRA 141 (1996); see also People v. Garcia, 258 SCRA 411 (1996); People v. Rapanut, 263 SCRA 515 (1996) and People v. Lug-ano, 299 SCRA 308 (1994).
[38] People v. Marra. 236 SCRA 565 (1994); People v. Desalisa, 229 SCRA 35 (1994).]
[39] People v. Decena, 235 SCRA 67 (1994); People v. Amaguin, 229 SCRA 166 (1994).
[40] TSN, 9 June 1992, pp. 29-30.
[41] Arts. 64 (2) & 65, Revised Penal Code.
That on or about the 8th day of November, 1991, in the municipality of Carmen, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attacked, assault and strike with a scythe and then shoot with the use of the service handgun which the accused wrested from the victim, SPO1 Placido Flores, who was unaware of the attack, thereby inflicting mortal injuries on the vital parts of the victim's body which resulted in the death of the said SPO1 Placido Flores; to the damage and prejudice of the heirs of the deceased in the amount to be proved during the trial.Upon the arraignment, appellant entered a plea of not guilty.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended.[1]
The prosecution established the following facts:
On 8 November 1991, at the police station in Carmen, Bohol, SPO1 Placido Flores sought permission from PO3 Gregorio Alimpolos to go to the house of appellant with "trustee-prisoner" Ellorde Galacio at around 1:00 a.m.. It was the birthday of appellant's wife, Sinforiana and Flores was bringing along Elorde to help roast the Amamangpang's pig that was earlier butchered.[2]
On their way to appellant's residence abroad the victim's patrol jeep, Flores and Galacio passed Manuel Noculan who was walking towards his carinderia at the public market to see to the newly harvested palay he had deposited there. Flores stopped and asked Noculan to Accompany them to appellant' house.[3]
Upon reaching the Amamangpang residence, Flores and Galacio entered the house of Noculan. Noculan followed and upon entering saw Flores sitting on the stairs with his head resting on the edge of a table. Noculan seated himself outside the house while Galacio stood beside the door. Appellant was then standing near Sinforiana who was cooking in the kitchen.[4]
Suddenly, from inside the house, Noculan heard a child shout. "Father! Don't!" Noculan immediately stood up and, peering through the door, saw appellant holding a scythe and about to strike Flores who was still wearing his fatigue pants and a white T-shirt with PNP emblem. Appellant's daughter, Genalyn had her arms around his (appellant's) waist.[5] Shocked by what he had witnessed, Noculan ran and hid. While running, he heard several gunshots.[6]
At the police station around 250 meters away from the Amamangpang residence, PO3 Alimpolos heard two gun shots followed by a rapid succession of four shots, alerting him and another patrolman. Thereafter, appellant, in bloody clothes and accompanied by his daughter, arrived at the police station and surrendered himself to Alimpolos. He admitted to the latter that he had killed Flores but gave no reason why. Appellant surrendered a .38 Smith and Wesson revolver and empty shells.[7]
Thereafter, police officers Jovencio Ybañez, Alfredo Llongas and Magdaleno Dano were dispatched to investigate the incident. At appellants house, they retrieved the scythe.[8]
Dr. Amalia G. Añana, municipal health officer of Carmen, Bohol, who was summoned to the crime scene, found the lifeless body of the victim lying in appellant's bedroom at the second storey of his house.[9] Her postmortem report reveals the following findings:
Cause of Death:
A. Incised wounds multiple at the ff:
1. 6 x 4 inches at the nape; base of the neck; 7th rib, right axillary region.
2. 6 x ½ inch mid-lateral forearm, right upper extremity
3. 5 x 1 inch at the upper lip slicing the tip of the nose.
B gunshot wounds, multiple at the ff:
1. ¼ inch right naso-maxillary bone 2 inches below the right eyeball; right parietal bone, 3 in number.
2. ¼ inch- entrance wound at the right posterior costal 7-rib, 4 inches from the spinal column.
The body was supine position (sic) with stretched upward outward upper extremities. The body from the waist up to his head was all covered with blood. The mat, floor, blanket and clothes were soaked with blood. The underwear at his ankle pants beside the left foot and the blanket underneath the body. The room was lighted with a small kerosene lamp near the Sto. Niño image. The body was found 1-1/2 meters from the lamp and the image.[10]In support of its theory that the appellant killed Flores in a fit of jealousy, the prosecution presented Margarita Flores (the wife of Placido Flores) who brought a certification[11] issued by the barangay captain of Guadalupe, Carmen, Bohol, showing that a complaint had been lodged against appellant resulting from physical injuries he had inflicted upon a certain Simon Betonio on suspicion that Betonio and appellant's wife were having an affair, but that the parties settled the case amicably after appellant shouldered the medical expenses incurred by Betonio.
For his part, appellant admitted killing Flores but claimed that he did it in defense of his wife's honor. As an alternative defense, appellant contended that his action was justified under Article 247 of the Revised Penal Code. After he caught his wife, Sinforiana and Flores engaged in the sexual act on that fateful day. He narrated the events as follows:
In the evening of 7 November 1991, in honor of his wife's birthday the next day, appellant butchered a pig with the assistance of Flores and Galacio. When his wife, Sinforiana and his daughter, Genalyn arrived, the former prepared their supper. After eating, Genalyn went to bed and rest (appellant, Flores, Gelacio and Sinforiana) drank tuba until midnight. Subsequently, Flores prodded appellant to sleep in his (appellant's) store at the public market with Galacio o guard the store against robbers. At first, appellant refused because he had to wake up early to roast the butchered pig. However, he changed his mind when Flores assured him that he would wake him up at dawn when he (Flores) reported for duty.[12]
That settled, Flores, Galacio and appellant boarded the patrol jeep. After dropping off the two men at the public market, Flores proceeded home. Appellant, however, discovered that he left his store key at home. He tried to force open the padlock but the effort proved futile. Resigned, he sat beside Galacio who was sleeping on the bamboo bed near the store. Minutes later, however, appellant felt cold, so he woke up Galacio and they decided to go home.[13]
Upon reaching appellant's house, Galacio excused himself to answer the call of nature. When appellant entered through the unfinished door at the back of his house, he heard a noise ("kasikas"). He proceeded upstairs and lighted a match. To his astonishment, he saw the half-naked Flores on top of his wife who still had her clothes on. Thereupon, appellant unsheathed his scythe and hacked the victim on the neck. He attempted to strike a second time but the handle of the scythe broke off. Flores was then lying face down in a crawling position.[14] Appellant jumped on Flores' back who tried "to draw his gun."[15] The two grappled for possession thereof. After wresting the gun from Flores, appellant ran downstairs. Flores pursued him. Appellant then faced Flores and shot him on the forehead. Flores "retraced his way" and fell down. Because of his anger, appellant consumed all the gun's bullets on the fallen Flores.[16]
Corroborating appellant's story, his wife, Sinforiana, testified that after supper she drank a little tuba with her husband, Flores and Galacio. At midnight, her husband followed the advice of Flores to spend the night in their store. After her husband, Flores and Galacio left, she went to sleep with her daughter.
Sinforiana was awakened when Flores "tried to abuse" her. At first, Flores held her, telling that he wanted to borrow money. She told him that she had no money as they had just made purchases for their store. Responding to what she said, Flores told her that he had long developed his love foe her. She thus retorted, "Pre, are you not foolish? We are close friends, why are you doing this to me?" But Flores removed his pants and briefs and embraced her. When Sinforiana tried to resist, Flores threatened to kill her. While Flores was on top of her, and embracing her, appellant arrived, unsheathed his scythe and hacked Flores. Freed from his embrace, Sinforiana ran away followed by her daughter.[17]
Twelve-year-old Genalyn Amamangnpang testified that she was awakenend by a noise and her mother saying, "Pre, why are you still here when in fact you already went home?" She saw her "manimoy" (godfather) Flores completely naked. She told him, "maninoy, what are you going to do with my mother?" Flores answered, "Keep quiet there Genalyn because if you will not, I will shot you." (sic) Just then, her father arrived and pulled out his scythe. Genalyn ran outside to fetch a policeman as her father instructed. She ran towards the public market but, not seeing any policeman, she went back home. Upon her arrival, her father told her to go with him to surrender and, together, they proceeded to the municipal building where the police station was located.[18]
On 8 October 1992, the RTC of Bohol, Branch 1 Tagbilaran City rendered a decision convicting appellant of murder. The trial court ruled that appellant's act of "emptying the bullets of the gun" on the body of the victim, even when the latter was "already helpless and severely wounded on the nape" constituted treachery. Likewise, the trial court appreciated nighttime as a generic aggravating circumstance and imposed the penalty of reclusion perpetua upon appellant. The dispositive portion of the decision reads, thus:
In this appeal, appellant raises the following issues:
PREMISES CONSIDERED, the Court finds the accused SERGIO AMAMANGPANG guilty of the crime of Murder punished under Article 248 of the Revised Penal Code and hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of law and to pay the cost.
The accused SERGIO AMAMANGPANG is further ordered to indemnify the surviving spouse Margarita Flores and the children of the late Placido Flores in the amount of FIFTY THOUSAND PESOS (P50,000.00) representing indemnity and THIRTY FIVE THOUSAND PESOS (P35,000.00) representing burial expenses and in both instances without subsidiary imprisonment in case of insolvency.
The Smith and Wesson (sic) revolver with Serial Number .335516 is ordered returned to the government through the PNP authorities.
SO ORDERED.[19]
Before going to the main defense, we shall first resolve the preliminaries raised by appellant.STATEMENT OF ISSUES
I. WHETHER OR NOT THE KILLING IS JUSTIFIED AS AN ACT OF DEFENSE OF HONOR.
II. WHETHER OR NOT THE KILLING HAS THE CHARACTER OF DEATH UNDER EXCEPTIONAL CIRCUMSTANCES AS PROVIDED FOR PROVIDED FOR UNDER ARTICLE 247 OF THE REVISED PENAL CODE OF THE PHILIPPINES.
ASSIGNMENT OF ERRORS
1. The trial court erred in finding the presence of the element of nighttime in appreciating it as aggravating circumstance.
2. The trial court erred in finding that accused emptied the bullets of the firearm in killing the victim who was already helpless and severely wounded in the nape.
3. The trial court erred in convicting the accused of the crime of murder and the subsequent application of the penalty of reclusion perpetua.[20]
Appellant contends that the pictures taken by the investigators, depicting the victim's body lying naked in the bedroom floor, were tampered with and suppressed by the prosecution. In support, appellant cites the following testimony of Dr. Añana:
Appellant's contention hardly deserves consideration. As testified to by Dr. Añana, the picture taken by the investigators, unfortunately, turned out "black" meaning the image did not come out. Hence, there was no sense in presenting said pictures as exhibits. Nevertheless, it cannot be asserted with certainty that Flores' body, as discovered by Dr. Añana when she arrived at the scene of the crime, was in exactly the same position where he had actually fallen and died from his wounds. The position of the body as described by Dr. Añana contradicts the testimony of prosecution witness Noculan that when his attention was roused by the shout of appellant's daughter, he saw appellant holding a scythe and was about to strike Flores who was lying prostrate on the ground, fully clothed, with blood oozing from his neck. After everybody ran and hid during the commotion, appellant was left in the house. Therefore had the opportunity to move the body of the victim from the ground floor to the second-storey bedroom and strip him of his lower garments to make it appear that the victim intended to have sexual intercourse with his (appellant's) wife.
Among those policeman who came to you, do you know if any pictures were taken by them or any of your companions in your direction?
Appellant also questions the failure of the prosecution to present the investigators and Galacio as witnesses.
Section 5, Rule 110 of the Rules of Court expressly provides that all criminal actions shall be prosecuted under the direction and control of the fiscal. Under this provision, the defense may not dictate on the prosecution the choice of the latter's witnesses as it is the prerogative of each party to determine which evidence to submit.[22]
Appellant further claims that it was Galacio's role to ensure that he (appellant) would stay at the market while Flores went back to appellant's house to "perpetrate his "lascivious scheme." If this was their theory, then, it should have been the defense which presented Galacio as witness, not the prosecution.
Proceeding to his main defense, appellant invokes the justifying circumstance of defense of relative under Article 11 (2) of the Revised Penal Code:
In cases of self-defense and defense of relatives where the accused has admitted the killing, we observe the time-honored rule that "[h]aving made the admission, it is, thus incumbent upon the accused to proved the justifying circumstances to the satisfaction of the court in order to be relieved of any criminal liability. In such instances, the accused must proffer strong, clear and convincing evidence of self-defense and depend not on the infirmity of the prosecution, for even if the latter was weak, the plea of self-defense cannot prosper especially so where the accused himself has admitted the killing….[23]
ART. 11. Justifying circumstance. -- The following do not incur any liability:
1. Anyone who acts in defense of his person or rights provided that the following circumstances concur:
First. Unlawful aggression
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted, brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degrees, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein.
In the case at bar, appellant miserably failed to hurdle this test. His claim is belied by the physical evidence on record. First, appellant's contention that he found Flores with his wife in the bedroom at the second floor of the house (the place where he cleaved Flores with his scythe) is negated by the fact that blood was found splattered on the table, the bamboo floor and the stairs in the first floor of the house as unmistakably shown in the pictures taken by amateur photographer Wilberto Dag-um.[24] We find incredulous appellant's explanation that after wrestling the gun from Flores he ran downstairs with Flores in pursuit and when he turned and shot Flores on the forehead the latter was able to "retrace his way" to the bedroom on the second floor of the house before falling down. It must be recalled that Flores was already severely wounded at the nape. Coupled with the gunshots wound on his forehead, which as testified to by Dr. Añana, was enough to have caused instantaneous death,[25] it is, therefore, inconceivable that he was still able to climb back up the stairs and finally collapse in the bedroom.
On the contrary, the pictures are consistent with Noculan's testimony that he saw the bloodied Flores prostrate on the ground in the first floor of the house and appellant poised to strike Flores again.[26]
Second, appellant's contention that he cut Flores only once with his scythe is repudiated by Dr. Añana findings that the victim's body bore three (3) incised wounds: at the nape and upper lip.
Third, Dr, Añana testified that the trajectory of the bullet wounds was "downward", hence "the assailant must be higher in position" than the victim.[27] She opined that the victim may have been shot while already lying prostrate on the floor.[28]
Finally, the testimony of appellant's daughter that Flores was completely naked.[29] Is materially inconsistent with the findings of Dr. Añana that Flores was wearing a shirt and was naked only from the waist down.[30] It also contradicts appellant's own testimony that when he was being pursued by Flores, the latter was only half-naked wearing a t-short but no brief and trousers.[31]
From the foregoing. We find more credible the theory of the prosecution that Flores was killed in the first floor of the house, as testified to by Noculan. His body, however, was subsequently carried upstairs to the bedroom and was stripped of his pants and underwear to make it appear that appellant caught Flores in the act of abusing his wife.
Appellant's story, as previously discussed, is full of material discrepancies. Appellant testified that he caught Flores on top of his wife in their bedroom on the second floor and that he reacted by hacking Flores with his scythe. But when the scythe's handle broke off, appellant jumped on Flores' back and they grappled for possession of Flores' gun. When Dr. Añana and the investigators arrived, however, they testified that" the things inside the room was (sic) still in order, the Sto. Niño and the lamp."[32]
Likewise, when Dr, Añana discovered Flores' body, she found his pants by his left foot and his underwear stripped down to his ankles.[33] But how could Flores have his underwear around his ankles at the time his body was found when appellant specifically stated that Flores was not wearing his trousers and brief when he chased appellants and the latter shot him. Thus, the only explanation for this is that appellant indeed altered the physical evidence so as to make it conform to his defense. It must be pointed out that nobody reported the crime. The police become aware of the incident only after appellant surrendered himself. Hence, appellant had the time and opportunity to move the body, remove the pants, strip the underwear down to the ankles and concoct the story of defending his wife from the lecherous intentions of Flores.
The alternative defense presented by appellant is Art. 247 of the revised Penal Code which provides:
ART. 247. Death of physical injuries inflicted under exceptional circumstances.--Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.x x x.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
He asserts that his action was the result of anger and passion after discovering his wife and his friend, Flores, engaged in sexual intercourse in his own home.
Appellant's assertion is unmeritorious. His two bases for exoneration are markedly inconsistent with each other. On one hand, he claims that he was defending his wife from Flores who was trying to force himself upon her. On the other, he gives the implication that his wife and Flores were having an illicit affair. Such contradictory theories are a manifest indication that appellant's defenses are nothing but mere concoctions. Besides, appellant's alternative defense is inconsistent with the testimonies of his wife (Sinforiana) and daughter (Genalyn) that Flores threatened to kill them if they refused to accede to his wishes.[34]
The trial court, however, erred in finding that the crime was committed with treachery. Treachery, which should be proven as clearly as the crime itself to be considered a qualifying circumstance,[35] was not conclusively established in this case. According to prosecution eyewitness Noculan, when he was alerted to the assault by the warning shout of appellant's daughter and he peeped inside the house, he saw the victim already prostrate on the bamboo floor, blood oozing form his neck and about to be struck by the appellant. Since the lone eyewitness failed to witness the initial attack inflicted upon the victim, treachery cannot be considered a qualifying circumstance.[36]
In People v. Beltran,[37] we reiterated the rule that:
x x x. There is treachery when, in the commission of the crime, the offender employs means, methods and forms which directly and specially insure the execution thereof without risk to himself arising from any defense the offender party might make. The essence of treachery is the swift and unexpected attack without the slightest provocation by the victim. In the case at bar, the victim may have sustained twenty-two (22) stab wounds but there is no evidence as to the manner in which the attack was made or how the stabbing resulting in her death begun and developed. The existence of treachery cannot be established from mere suppositions nor drawn from circumstances that existed prior and after the filling; it must be proved by clear and convincing evidence or as conclusively as the killing itself. Where treachery is not adequately proved, appellant can only be convicted of homicide. (Underscoring ours.)In the absence of treachery, appellant should be held liable only for homicide under article 249 of the revised Penal Code.
We agree with the Solicitor General that the aggravating circumstance of nighttime was not present when the crime was committed. No evidence was adduced to indicate that nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or to insure his immunity from capture.[38] The fact that the crime took place at night was just incidental.
The mitigating circumstance of voluntary surrender should be considered in applellant's favor because of the concurrence of the following requisites: (a) the offender had not actually been arrested; (b) the offender surrendered himself to a person in authority or to an agent of a person in authority; and (c) the surrender was voluntary.[39]
PO3 Alimpolos distinctly testified that appellant, on his own volition, appeared at the police station and surrendered himself shortly after he had killed Flores.[40] By the presence of this mitigating circumstances and there being no generic aggravating circumstance, the penalty imposable shall be the minimum period of reclusion temporal.[41] Applying the indeterminate Sentence Law, appellant shall suffer the penalty of prision mayor, minimum as the minimum penalty to reclusion temporal, minimum as the maximum penalty.
WHEREFORE, appellant Sergio Amamangpang is hereby found guilty beyond the reasonable doubt of the crime of homicide for the killing of SPO1 Placido Flores and shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor minimum as minimum penalty to twelve (12) years and one (1) day of reclusion temporal minimum as maximum penalty. The monetary awards to the heirs of SPO1 Placido Flores imposed upon appellant by the trial court are AFFIRMED. Costs against appellant.
SO ORDERED
Narvasa, C.J., (Chairman), Romero, and Purisima, JJ., concur.
[1] Rollo, pp. 4-5.
[2] TSN, 9 June 1992, pp. 26-28.
[3] Id., at 5-6.
[4] Id., at 8-9.
[5] Id., at 10-12 & 21.
[6] Id., at 12.
[7] Id., at 28-30.
[8] Exh. "C."
[9] TSN, 2 July 1992, p. 3.
[10] Exh. "F," Original Records, Documentary Evidence, p. 5.
[11] Exh. "H," Id., at 8.
[12] TSN, 4 September 1992, pp. 2-4.
[13] Id., at 4.
[14] Id at 5, 18-20.
[15] Id., at 6.
[16] Id., at 8.
[17] Id., at 34-36.
[18] TSN, 20 August 1992, pp. 6-10.
[19] Rollo, pp 18-19.
[20] Id., at p. 34.
[21] TSN, 2 July 1992, p. 15.
[22] People v. De los Reyes, 229 SCRA 439 (1994), citing People v. Carpio, 207 SCRA 569 (1992)
[23] People v. Bausing, 199 SCRA 355 (1991).
[24] Exh. "A" and "B," Original records, Documentary Evidence, pp. 1-2.
[25] TSN, 2 July 1992, p. 9.
[26] TSN, 9 June 1992, p. 21.
[27] Id.,at 7.
[28] Ibid.
[29] TSN., 20 August 1992, p. 7.
[30] TSN, 2 June 1992, p.11.
[31] TSN, 4 September 1992, p. 22
[32] TSN, 2 July 1992, p. 12
[33] Id., at 14.
[34] TSN, 4 September 1992, pp. 35-36; TSN,20 August 1992, pp. 7-8.
[35] People v. Ablao, 229 SCRA 280 (1994).
[36] People v. Salvador, 224 SCRA 819 )1993); People v. Cordero, 217 SCRA 1 (1993).
[37] 260 SCRA 141 (1996); see also People v. Garcia, 258 SCRA 411 (1996); People v. Rapanut, 263 SCRA 515 (1996) and People v. Lug-ano, 299 SCRA 308 (1994).
[38] People v. Marra. 236 SCRA 565 (1994); People v. Desalisa, 229 SCRA 35 (1994).]
[39] People v. Decena, 235 SCRA 67 (1994); People v. Amaguin, 229 SCRA 166 (1994).
[40] TSN, 9 June 1992, pp. 29-30.
[41] Arts. 64 (2) & 65, Revised Penal Code.