EN BANC
[ G.R. No. 123982, March 15, 1999 ]PEOPLE v. PO2 LEONARDO K. JOYNO +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PO2 LEONARDO K. JOYNO, DEFENDANT-APPELLANT.
D E C I S I O N
PEOPLE v. PO2 LEONARDO K. JOYNO +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PO2 LEONARDO K. JOYNO, DEFENDANT-APPELLANT.
D E C I S I O N
GONZAGA-REYES, J.:
For automatic review is the Decision dated December 29, 1995 of the Regional Trial Court of Sindangan, Zamboanga del Norte, Branch 11 in Criminal Case No. S-2406 finding accused-appellant Leonardo K. Joyno guilty beyond reasonable doubt of the crime of
Parricide and sentencing him to suffer the penalty of death and to indemnify the heirs of the victim in the sum of P50,000.00.
The Information'[1] dated May 4, 1994 charging PO2 Leonardo K. Joyno with the crime of Parricide reads as follows:
At the trial, the prosecution presented the following witnesses: Ruben Campaner, Aurea Bation Vda. de Uy, Dr. Henry G. Cawley and Dr. Guillermo Literatus.
Prosecution witness Ruben Campaner was present at the scene of the shooting incident. He testified that he and the accused were neighbors, their houses being separated only by a fence; that at about 6:00 P.M. on March 9, 1994, he was at the house of the accused drinking with the latter, the victim and a man working at the accused's house; when it was already dark, they transferred to the dining room, continued drinking beer, Tanduay rhum and tuba and partook of the head of "lechon" and rice; that at about 10:45 in the evening, accused and the victim had an altercation regarding the suggestion of the accused to transfer their residence to Mutia with which the victim disagreed; that the commented that accused's parents had "bad character" and were ill-mannered for which reason, accused got angry and told his wife (the victim) to keep quiet; and that the continued talking and the accused shot her.[2] The police, accompanied by this witness, went to the scene of the crime, found the victim slumped on the table dead in a stooping position, and took pictures of the victim.[3]
Aurea Bation Vda. de Uy is the mother of the victim. She testified that her daughter, who was married to the accused, died on March 9, 1994 at about 10:45 P.M. at the latter's residence; that she was sleeping at her house when her neighbor woke her up and informed her that her daughter Marivel was shot; that when she went to her daughter's house, she saw her already slumped dead on the table; that she went and reported the shooting incident to the Salug Police Station and saw accused who surrendered himself and his armalite rifle; and that thereafter, she proceeded to the residence of the Joynos and placed the dead body of Marivel on the bed.[4]
Dr. Guillermo Literatus, the municipal health officer, examined the body of the victim and made the following Post Mortem Report.'[5]
Accused testified as the lone witness for the defense. He stated that he has been a member of the Philippine National Police since 1987 and that he was legally married to Marivel Uy. Accused's version is that the shooting was purely accidental. He testified that on March 9, 1994, he hired a carpenter named Abundio Sumalpong to fix the roofing of their house; that at around 4:00 P.M. when the work was already finished, he, Abundio and Marivel were drinking at the back of their house until 5:30 P.M.; that Mrs. Dimasuhid, a neighbor, invited Marivel to go to the former's house to attend a birthday party; that he followed his wife Marivel who was drinking together with her relatives; that Mrs. Dimasuhid gave him the head of the "lechon" but because there was no person left in their house, accused told his wife to go home but the latter got angry; that he went home, placed the "lechon" on the table, after which Ruben Campaner arrived[7]; that his wife returned at about 9:30 in the evening and was angry at him for following her at the party; that he proposed to transfer residence to Mutia but his wife hated the mere thought of living with her parents-in-law, who according to her, were ill-mannered; that he decided to get his armalite rifle to keep it upstairs so he can rest but his wife tried to take possession of the firearm; that while grappling for possession of the firearm, the firearm accidentally fired twice; that he had no intention to kill his wife'[8]; that Ruben Campaner was in the comfort room when the gun went off, and that he did not bring his wife to the hospital because he was already shocked; instead, he went to the police station to surrender to the police authorities, including his armalite rifle.[9]
The court a quo found that the evidence of the prosecution has established the guilt of the accused with the attendance of the aggravating circumstances of (1) taking advantage of his public position, accused being a member of the Philippine National Police and having committed the crime with an armalite rifle issued to him, and (2) dwelling; and one mitigating circumstance of voluntary surrender.
The court a quo rendered judgment on December 29, 1995, the dispositive portion of which reads:
In his brief, accused-appellant raised the following assignment of errors:
Appellee, through the Solicitor General alleges that the antecedent circumstances leading to the shooting reveal that accused-appellant deliberately shot his wife. Immediately prior to the incident appellant and the victim were embroiled in a heated argument regarding the appellant's plan to transfer their residence to Mutia, Zamboanga del Norte, the place where her parents-in-law lived; the victim protested and in the course of their argument the victim uttered insults against appellant's parents which enraged appellant; the victim continued to utter unsavory remarks against her in-laws; and appellant lost his temper and he dashed towards where his armalite rifle was located, grabbed it and without warning, fired twice at his wife.
In his Reply Brief, appellant argues that as the weapon involved was a high-powered rifle, Marivel should have been thrown out from the chair she was sitting on and slumped dead on the floor; that instead of being thrown away from where the force and impact of the M16 armalite rifle came from, she slumped dead on the table.
We resolve to affirm the judgment of conviction.
Under Article 246 of the Revised Penal Code as amended by Section 5 of Republic Act 7659, parricide is committed by any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse and is punished by the penalty of reclusion perpetua to death.
There is no question that appellant and the victim were legally married on October 12, 1988 at Salug, Zamboanga del Norte.[10] The incident happened in the presence of an eyewitness, Ruben Campaner, who was then drinking with appellant and the victim. Ruben testified[11]:
To support his version that the shooting was accidental appellant testified that his wife took possession of the armalite rifle and while in the course of grappling for possession of the firearm, it went off and fired twice.[12] He likewise tesfified that he was holding the butt of the armalite rifle; his wife's right hand held on to the barrel while her left hand reached the trigger housing of the firearm.[13] His wife fell down to the chair and then he aided her to Sit on the Chair.[14]
The pictures taken at the scene of the crime belie appellant's assertions. Exhibit "B-1"[15] shows what looks like a cigarette between the victim's forefinger and middle finger of her left hand. This belies appellant's testimony that the victim was grappling for possession of the firearm and her left hand reached the trigger housing of the armalite rifle. The picture clearly shows that the victim was seated and holding a cigarette at the time she was shot.
Appellant likewise testified that he placed the firearm on the table.[16] His wife was seated at the northern part of the table while he was seated at the western part. The muzzle or barrel of the riffle was pointing northwest.[17] If the riffle was placed on the table and the victim grabbed it and the appellant and the victim grappled for its possession there ought to have been some movement of the things placed on top of the table. But as seen in Exhibit "C",[18] there were 2 glasses still standing beside the left arm of the victim, and a bottle on the inner side of her right arm, clearly negating the claim of appellant that there was grappling for the gun right on the table.[19]
Appellant likewise claims that the firing of the gun was accidental because the trajectory of the wounds on Marivel were parallel to the table where they were grappling for the possession of the gun. He asserted that had the firing of the gun been intentional appellant would have been in a standing position and in this case, the trajectory of the bullets would be downward.[20]
Appellant's asseveration is belied by the evidence presented by the prosecution which showed that the gunshot wounds were "downward and medially". The Exhumation Report submitted by Dr. Henry Cawley shows the following findings[21]:
Anent the trial court's appreciation of dwelling as an aggravating circumstance, appellant contends that such circumstance is not present here. He argues that he and his wife Marivel lived together at their conjugal home at Sitio Campo, Poblacion, Salug, Zamboanga del Norte.
We agree with appellant. Appellant Leonardo and victim Marivel got married on October 12, 1988.[23] After their marriage, the newly wed couple lived with the victim's mother at Sitio Campo, Poblacion, Salug, Zamboanga del Norte for two (2) years. In 1990, the couple bought a house nearby and transferred there.[24] The fatal incident occurred at the couple's residence. It is well-settled that dwelling cannot be considered as an aggravating circumstance where appellant and the victim were living in the same house where the crime was committed.[25] The rationale for considering dwelling as an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime.[26] This reason is absent in this case.
The Court likewise notes that the court a quo appreciated the aggravating circumstance that "advantage be taken by the offender of his public position" considering that appellant was a former member of the Philippine Constabulary and later, of the Philippine National Police and the crime was committed with an armalite rifle issued to him.[27] However, for public position to be appreciated as an aggravating circumstance, the public official must use his influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the crime without occupying his position, then there is no abuse of public position.[28] In one case[29] where the accused was a sergeant of the Philippine Army, this Court held that the mere fact that he was in fatigue uniform and had an army rifle at the time is not sufficient to establish that he misused his public position. In another case[30] where the accused, a Constabulary soldier, used a Garand rifle in the provincial jail armory in killing a policeman, the aggravating circumstance of taking advantage of public position was not appreciated because accused could have secured a rifle from other sources. And in the murder by a public officer[31] it was ruled that firearms, however and whenever obtained, are not an ingredient of murder or homicide. The crime could have been committed by defendants in the same or like manner and with the same case if they had been private individuals and fired with unlicensed weapons. In the case at bar, although the victim was killed with appellant's armalite rifle which was issued to him, there was nothing to show that appellant took advantage of his position. In the absence of proof that advantage was taken by appellant the aggravating circumstance of abuse of position could not be property appreciated against him.[32]
Considering that appellant voluntarily surrendered to the police authorities immediately after the shooting incident,[33] the mitigating circumstance of voluntary surrender was correctly appreciated by the court a quo.
However, the penalty of death imposed by the court a quo must be modified. Under Article 246 of the Revised Penal Code as amended by Republic Act No. 7659, the penalty for Parricide is reclusion perpetua to death. Applying Article 63 of the same code, the lesser penalty shall be applied when the commission of the act is attended by a mitigating circumstance.
WHEREFORE, the appealed decision convicting appellant Leonardo K. Joyno of the crime of Parricide is hereby AFFIRMED with MODIFICATION in that the penalty imposed is reduced to Reclusion Perpetua.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, and Buena, JJ., concur.
[1] p. 17, Record.
[2] Tsn, October 14, 1994 at pp. 4-7.
[3] Exhibits "B" "C", "D", & "E", p. 51, Record.
[4] Tsn, November 25, 1994 at pp. 3-6, 1 0.
[5] Exhibit "A", p. 57, Record.
[6] Tsn, January 27, 1995 at pp. 2-7; Exhibits "K" to "K-7", pp. 55-56, Record.
[7] Tsn, September 8, 1995 at pp. 6-8.
[8] Tsn September 8, 1995 at pp. 9-12; Tsn, October 20, 1995 at p. 2.
[9] Tsn, September 8, 1995 at p. 20; Tsn, October 20, 1995 at p. 3.
[10] Exhibit "G" to "G-2" p. 54, Record.
[11] Tsn October 14, 1994 at pp. 6-9.
[12] Tsn, September 8, 1995, at p. 11.
[13] at p. 17, supra.
[14] at p. 18, supra.
[15] p. 51, Record.
[16] Tsn, September 8, 1994 at p. 9.
[17] at p. 10, Supra.
[18] p. 52, Record.
[19] Tsn, September 8, 1995 at pp. 15-17.
[20] p. 10, Appellant's Brief p. 67, Rollo.
[21] Exhibits "K-5" & "K-6", p. 2, Exhumation Report p. 56, Record.
[22] People vs. Cayabyab, 274 SCRA 387; People vs. Salazar, 272 SCRA 481; People vs, Salvatierra, 257 SCRA 489; People vs. Lian 255 SCRA 532
[23] Exhibit "G", p. 54, Record
[24] Tsn, November 25,1994 at pp. 9-10; Tsn, September 8,1995 at pp. 4-5.
[25] People vs. Wilfredo Bañez y Cabaez, G.R. No. 125849, prom. January 19, 1999, People vs. Morales, 94 SCRA 191.
[26] People vs. Bañez, supra; People vs. Balansi 187 SCRA 566.
[27] p. 10, RTC-Decision, p. 81, Record.
[28] People vs. Sumaoy, 263 SCRA 460; People vs. Padilla, 233 SCRA 46.
[29] People vs. Pantoja, 25 SCRA 468.
[30] People vs. Sales, 97 Phil. 995.
[31] Montilla and Tobia vs. Hilario and Crisologo, 90 Phil. 49.
[32] People vs. Ordiales, 42 SCRA 238.
[33] Tsn, October 14, 1994 at p. 10; Tsn, November 25, 1994 at p. 6; Tsn, September 8, 1995 at p. 20; Tsn, October 20, 1995 at p. 2
The Information'[1] dated May 4, 1994 charging PO2 Leonardo K. Joyno with the crime of Parricide reads as follows:
"That in the evening on or about the 9th day of March, 1994, in the municipality of Salug, Zamboanga del Norte, within the jurisdiction of this Honorable Court the said accused, armed with M16 rifle caliber 5.56 Armalite and with intent to kill by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot his lawful wife MARIVEL UY JOYNO, thereby inflicting upon her gunshot wound on the vital part of her body which caused her instantaneous death; that as a result of the commission of the said crime the heirs of the herein victim suffered the following damages, viz:Upon arraignment accused duly assisted by counsel entered a plea of not guilty.
a) Indemnity for victim's death.......................P50,000.00
b) b) Loss of earning capacity..........................30,000.00
P80,000.00
CONTRARY TO LAW (Viol. of Art. 246, Revised Penal Code)."
At the trial, the prosecution presented the following witnesses: Ruben Campaner, Aurea Bation Vda. de Uy, Dr. Henry G. Cawley and Dr. Guillermo Literatus.
Prosecution witness Ruben Campaner was present at the scene of the shooting incident. He testified that he and the accused were neighbors, their houses being separated only by a fence; that at about 6:00 P.M. on March 9, 1994, he was at the house of the accused drinking with the latter, the victim and a man working at the accused's house; when it was already dark, they transferred to the dining room, continued drinking beer, Tanduay rhum and tuba and partook of the head of "lechon" and rice; that at about 10:45 in the evening, accused and the victim had an altercation regarding the suggestion of the accused to transfer their residence to Mutia with which the victim disagreed; that the commented that accused's parents had "bad character" and were ill-mannered for which reason, accused got angry and told his wife (the victim) to keep quiet; and that the continued talking and the accused shot her.[2] The police, accompanied by this witness, went to the scene of the crime, found the victim slumped on the table dead in a stooping position, and took pictures of the victim.[3]
Aurea Bation Vda. de Uy is the mother of the victim. She testified that her daughter, who was married to the accused, died on March 9, 1994 at about 10:45 P.M. at the latter's residence; that she was sleeping at her house when her neighbor woke her up and informed her that her daughter Marivel was shot; that when she went to her daughter's house, she saw her already slumped dead on the table; that she went and reported the shooting incident to the Salug Police Station and saw accused who surrendered himself and his armalite rifle; and that thereafter, she proceeded to the residence of the Joynos and placed the dead body of Marivel on the bed.[4]
Dr. Guillermo Literatus, the municipal health officer, examined the body of the victim and made the following Post Mortem Report.'[5]
"- Wound, gunshot entrance 0.4 inch in diameter, midaxillary area, with dark discoloration of the edges, left penetrating the chest left through and through, with a length of 3 inches, exit has 0. 5 inch in diameter, upper chest area with 3 petechial lesions near the mid portion, sternal line.Dr. Henry G. Cawley, medico-legal officer of NBI-Zamboanga City who prepared the Exhumation Report testified that, based on his findings, the body of the victim bore 2 gunshot wounds on the left side of the chest; the said gunshot wounds were both entrance wounds; and these were the cause of death.[6]
CAUSE OF DEATH:
Hypovolemic Shock secondary to massive hemorrhage sustained from gunshot wound."
Accused testified as the lone witness for the defense. He stated that he has been a member of the Philippine National Police since 1987 and that he was legally married to Marivel Uy. Accused's version is that the shooting was purely accidental. He testified that on March 9, 1994, he hired a carpenter named Abundio Sumalpong to fix the roofing of their house; that at around 4:00 P.M. when the work was already finished, he, Abundio and Marivel were drinking at the back of their house until 5:30 P.M.; that Mrs. Dimasuhid, a neighbor, invited Marivel to go to the former's house to attend a birthday party; that he followed his wife Marivel who was drinking together with her relatives; that Mrs. Dimasuhid gave him the head of the "lechon" but because there was no person left in their house, accused told his wife to go home but the latter got angry; that he went home, placed the "lechon" on the table, after which Ruben Campaner arrived[7]; that his wife returned at about 9:30 in the evening and was angry at him for following her at the party; that he proposed to transfer residence to Mutia but his wife hated the mere thought of living with her parents-in-law, who according to her, were ill-mannered; that he decided to get his armalite rifle to keep it upstairs so he can rest but his wife tried to take possession of the firearm; that while grappling for possession of the firearm, the firearm accidentally fired twice; that he had no intention to kill his wife'[8]; that Ruben Campaner was in the comfort room when the gun went off, and that he did not bring his wife to the hospital because he was already shocked; instead, he went to the police station to surrender to the police authorities, including his armalite rifle.[9]
The court a quo found that the evidence of the prosecution has established the guilt of the accused with the attendance of the aggravating circumstances of (1) taking advantage of his public position, accused being a member of the Philippine National Police and having committed the crime with an armalite rifle issued to him, and (2) dwelling; and one mitigating circumstance of voluntary surrender.
The court a quo rendered judgment on December 29, 1995, the dispositive portion of which reads:
"IN VIEW OF THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime charged in the above-quoted information, with the attendance of two (2) aggravating circumstances, and only one (1) mitigating circumstance present but since this is not enough to offset the aforementioned aggravating circumstances, the Court hereby sentences the accused to suffer the maximum penalty provided by law which is DEATH and to indemnify the heirs of the victim in the sum of P50,000.00, the recent case law (People vs. Villanueva, G.R. No. 95851, March 1, 1995).In view of the penalty imposed by the trial court this appeal was filed directly with this Court.
LET accused be immediately transferred to the Bureau of Corrections in Muntinlupa, Metro Manila (Circular No. 4-92-A of the Supreme Court).
COSTS de oficio."
In his brief, accused-appellant raised the following assignment of errors:
"I - THE COURT A QUO GRAVELY ERRED IN APPRECIATING DWELLING AS ONE OF THE AGGRAVATING CIRCUMSTANCES;Appellant insists that the firing of the M16 armalite rifle which caused the instantaneous death of his wife Marivel was accidental. He claims that he had no intent to kill his wife. He averred that he took his service M16 armalite rifle placed at a nearby crib and when he was about to stand up, his wife Marivel suddenly grabbed the rifle; that he and his wife were grappling for possession of the rifle and in the process, the gun accidentally fired twice hitting Marivel on her breast and causing her instantaneous death. Appellant argues that the trajectory of the wounds on the breast of Marivel were parallel to the table where they were grappling for the possession of the gun; that had the firing of the gun been intentional appellant would have been in a standing position and in this case, the trajectory of the bullets would be downward.
II - THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF PARRICIDE AS CHARGED IN THE CRIMINAL INFORMATION; and
III - THE COURT A QUO GRAVELY ERRED IN NOT RENDERING A JUDGMENT OF ACQUITTAL."
Appellee, through the Solicitor General alleges that the antecedent circumstances leading to the shooting reveal that accused-appellant deliberately shot his wife. Immediately prior to the incident appellant and the victim were embroiled in a heated argument regarding the appellant's plan to transfer their residence to Mutia, Zamboanga del Norte, the place where her parents-in-law lived; the victim protested and in the course of their argument the victim uttered insults against appellant's parents which enraged appellant; the victim continued to utter unsavory remarks against her in-laws; and appellant lost his temper and he dashed towards where his armalite rifle was located, grabbed it and without warning, fired twice at his wife.
In his Reply Brief, appellant argues that as the weapon involved was a high-powered rifle, Marivel should have been thrown out from the chair she was sitting on and slumped dead on the floor; that instead of being thrown away from where the force and impact of the M16 armalite rifle came from, she slumped dead on the table.
We resolve to affirm the judgment of conviction.
Under Article 246 of the Revised Penal Code as amended by Section 5 of Republic Act 7659, parricide is committed by any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse and is punished by the penalty of reclusion perpetua to death.
There is no question that appellant and the victim were legally married on October 12, 1988 at Salug, Zamboanga del Norte.[10] The incident happened in the presence of an eyewitness, Ruben Campaner, who was then drinking with appellant and the victim. Ruben testified[11]:
Ruben Campaner's credibility has not been questioned and there is no reason or motive that has been shown why he would falsely testify in order to implicate appellant who was a family friend.
"ATTY. SELDA: Q: A: Because I saw it. Q: So, you were present? A: Yes, Sir. Q: A: There was sir. Q: What was that argument about? A: Q: A: He got angry. Q: How did Leonardo Joyno display his anger towards Marivil Joyno? A: Leonardo Joyno told her wife not to comment that kind of words to his parents and she was told to keep quiet. Q: Did Marivil keep quiet? A: No, sir.
Q. What did she do? A: She continued talking. Q. While Marivil Joyno was talking what did Leonardo Joyno do? A: He shot. Q: A: They always argue. Q: You have been a privy to their quarrel?
A: Yes, sir.
Q: And usually, when they quarrel what does Leonardo Joyno do? A: He always hold his firearm. Q: A: The issued Armalite rifle. Q: About how far were you from Marivil Joyno when Marivil Joyno was shot by Leonardo Joyno? A: Very near. Q: What was your distance? A: Q: A: Yes, sir. Q: What kind of lights? A: Fluorescent Bulb. Q: It was well lighted when you and your companions were drinking and eating? A: Yes, sir. Q: A: In the baby's crib. Q: About how far is the baby's crib to Leonardo Joyno? A: Very near. Q: How far, please point to any distance? A: There (The witness pointing where he was sitting to the walling which is approximately 1 and 1/2 meters). Q: When Marivil Joyno was being shot what was her position? A: She was sitting.
Q: Where? A: In the table. On the place where we were drinking. Q: On the table or beside the table? A: She was seated on a chair beside the table. Q: When Leonardo Joyno shot at Marivil Uy Joyno about how far were you from Leonardo Joyno? A: Fronting each other and we were very near. Q: About the same distance as the distance from you and Marivil Joyno? A: Little different. Q: Did Leonardo Joyno prior to the incident utter any words to Marivil Uy Joyno? A: No, sir. Q: A: Immediately he shot. Q: A: Yes, sir. Q: When Marivil Joyno was shot was she hit? A: Yes, sir. Q: Where was Marivil hit? A: On the breast. Q: How many times was she shot at by Leonardo Joyno? A: Two continuous shots. Q: Was the burst successive when fired? A: Single. Q: So, two single shot was fired at Marivil? A: Yes, Sir. Q: You said that Marivil was hit on the breast? A: Yes, sir.
Q Why did you say he was hit on the breast were you able to see?
A: Because the blood sprauted out.
Q: A: I do not know. After that I run away immediately. I was afraid."
To support his version that the shooting was accidental appellant testified that his wife took possession of the armalite rifle and while in the course of grappling for possession of the firearm, it went off and fired twice.[12] He likewise tesfified that he was holding the butt of the armalite rifle; his wife's right hand held on to the barrel while her left hand reached the trigger housing of the firearm.[13] His wife fell down to the chair and then he aided her to Sit on the Chair.[14]
The pictures taken at the scene of the crime belie appellant's assertions. Exhibit "B-1"[15] shows what looks like a cigarette between the victim's forefinger and middle finger of her left hand. This belies appellant's testimony that the victim was grappling for possession of the firearm and her left hand reached the trigger housing of the armalite rifle. The picture clearly shows that the victim was seated and holding a cigarette at the time she was shot.
Appellant likewise testified that he placed the firearm on the table.[16] His wife was seated at the northern part of the table while he was seated at the western part. The muzzle or barrel of the riffle was pointing northwest.[17] If the riffle was placed on the table and the victim grabbed it and the appellant and the victim grappled for its possession there ought to have been some movement of the things placed on top of the table. But as seen in Exhibit "C",[18] there were 2 glasses still standing beside the left arm of the victim, and a bottle on the inner side of her right arm, clearly negating the claim of appellant that there was grappling for the gun right on the table.[19]
Appellant likewise claims that the firing of the gun was accidental because the trajectory of the wounds on Marivel were parallel to the table where they were grappling for the possession of the gun. He asserted that had the firing of the gun been intentional appellant would have been in a standing position and in this case, the trajectory of the bullets would be downward.[20]
Appellant's asseveration is belied by the evidence presented by the prosecution which showed that the gunshot wounds were "downward and medially". The Exhumation Report submitted by Dr. Henry Cawley shows the following findings[21]:
"Body, embalmed, well preserved, face, arms, hands, legs, feet moldy, in a white dress, white linen-like cloth from the abdomen down, green blanket at feet pink negligee and white maong long pants at the back, in a brown wooden coffin buried in an above ground cemented niche.Settled is the rule that evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.[22] Here, the trajectory of the bullets was downward both penetrating the diaphragm, one piercing the liver and the other the stomach, thus belying the appellant's claim that he and his wife were grappling for possession of the rifle on the table when the firearm went off accidentally. The victim was seated when she was shot as testified to by witness Campaner.
GUNSHOT WOUNDS, modified by embalming and suturing, chest left side, irregular, edges inverted, with a contusion collar widest at its supero-lateral border, surrounded by a common area of blackening and tatooing, 9x11cm, directed backward, downward and medially;
1) 1.2x3.0cm, 8.5cm from the anterior median line, 122cm from the left heel, thru the second intercostal space, fracturing sternum, penetrating the left thoracic cavity, lacerating extensively the heart, penetrating the diaphragm, right side, piercing the liver, right lobe, with two metallic fragments lodged and recovered;
2) 1.5x4cm, 14cm from the anterior median line, 120cm from the left heel thru the third intercostal space, fracturing the fourth rib, penetrating the left thoracic cavity, diaphragm, left side, perforating stomach, small intestine and mesentery.
Hemothorax: left 800ml; right 500ml.
Hemoperitoneum: 200ml.
Uterus: 6cm, firm, with intra-uterine device, non-gravid.
Other visceral organs, congested.
CAUSE OF DEATH: GUNSHOT WOUNDS."
Anent the trial court's appreciation of dwelling as an aggravating circumstance, appellant contends that such circumstance is not present here. He argues that he and his wife Marivel lived together at their conjugal home at Sitio Campo, Poblacion, Salug, Zamboanga del Norte.
We agree with appellant. Appellant Leonardo and victim Marivel got married on October 12, 1988.[23] After their marriage, the newly wed couple lived with the victim's mother at Sitio Campo, Poblacion, Salug, Zamboanga del Norte for two (2) years. In 1990, the couple bought a house nearby and transferred there.[24] The fatal incident occurred at the couple's residence. It is well-settled that dwelling cannot be considered as an aggravating circumstance where appellant and the victim were living in the same house where the crime was committed.[25] The rationale for considering dwelling as an aggravating circumstance is the violation by the offender of the sanctity of the home of the victim by trespassing therein to commit a crime.[26] This reason is absent in this case.
The Court likewise notes that the court a quo appreciated the aggravating circumstance that "advantage be taken by the offender of his public position" considering that appellant was a former member of the Philippine Constabulary and later, of the Philippine National Police and the crime was committed with an armalite rifle issued to him.[27] However, for public position to be appreciated as an aggravating circumstance, the public official must use his influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the crime without occupying his position, then there is no abuse of public position.[28] In one case[29] where the accused was a sergeant of the Philippine Army, this Court held that the mere fact that he was in fatigue uniform and had an army rifle at the time is not sufficient to establish that he misused his public position. In another case[30] where the accused, a Constabulary soldier, used a Garand rifle in the provincial jail armory in killing a policeman, the aggravating circumstance of taking advantage of public position was not appreciated because accused could have secured a rifle from other sources. And in the murder by a public officer[31] it was ruled that firearms, however and whenever obtained, are not an ingredient of murder or homicide. The crime could have been committed by defendants in the same or like manner and with the same case if they had been private individuals and fired with unlicensed weapons. In the case at bar, although the victim was killed with appellant's armalite rifle which was issued to him, there was nothing to show that appellant took advantage of his position. In the absence of proof that advantage was taken by appellant the aggravating circumstance of abuse of position could not be property appreciated against him.[32]
Considering that appellant voluntarily surrendered to the police authorities immediately after the shooting incident,[33] the mitigating circumstance of voluntary surrender was correctly appreciated by the court a quo.
However, the penalty of death imposed by the court a quo must be modified. Under Article 246 of the Revised Penal Code as amended by Republic Act No. 7659, the penalty for Parricide is reclusion perpetua to death. Applying Article 63 of the same code, the lesser penalty shall be applied when the commission of the act is attended by a mitigating circumstance.
WHEREFORE, the appealed decision convicting appellant Leonardo K. Joyno of the crime of Parricide is hereby AFFIRMED with MODIFICATION in that the penalty imposed is reduced to Reclusion Perpetua.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, and Buena, JJ., concur.
[1] p. 17, Record.
[2] Tsn, October 14, 1994 at pp. 4-7.
[3] Exhibits "B" "C", "D", & "E", p. 51, Record.
[4] Tsn, November 25, 1994 at pp. 3-6, 1 0.
[5] Exhibit "A", p. 57, Record.
[6] Tsn, January 27, 1995 at pp. 2-7; Exhibits "K" to "K-7", pp. 55-56, Record.
[7] Tsn, September 8, 1995 at pp. 6-8.
[8] Tsn September 8, 1995 at pp. 9-12; Tsn, October 20, 1995 at p. 2.
[9] Tsn, September 8, 1995 at p. 20; Tsn, October 20, 1995 at p. 3.
[10] Exhibit "G" to "G-2" p. 54, Record.
[11] Tsn October 14, 1994 at pp. 6-9.
[12] Tsn, September 8, 1995, at p. 11.
[13] at p. 17, supra.
[14] at p. 18, supra.
[15] p. 51, Record.
[16] Tsn, September 8, 1994 at p. 9.
[17] at p. 10, Supra.
[18] p. 52, Record.
[19] Tsn, September 8, 1995 at pp. 15-17.
[20] p. 10, Appellant's Brief p. 67, Rollo.
[21] Exhibits "K-5" & "K-6", p. 2, Exhumation Report p. 56, Record.
[22] People vs. Cayabyab, 274 SCRA 387; People vs. Salazar, 272 SCRA 481; People vs, Salvatierra, 257 SCRA 489; People vs. Lian 255 SCRA 532
[23] Exhibit "G", p. 54, Record
[24] Tsn, November 25,1994 at pp. 9-10; Tsn, September 8,1995 at pp. 4-5.
[25] People vs. Wilfredo Bañez y Cabaez, G.R. No. 125849, prom. January 19, 1999, People vs. Morales, 94 SCRA 191.
[26] People vs. Bañez, supra; People vs. Balansi 187 SCRA 566.
[27] p. 10, RTC-Decision, p. 81, Record.
[28] People vs. Sumaoy, 263 SCRA 460; People vs. Padilla, 233 SCRA 46.
[29] People vs. Pantoja, 25 SCRA 468.
[30] People vs. Sales, 97 Phil. 995.
[31] Montilla and Tobia vs. Hilario and Crisologo, 90 Phil. 49.
[32] People vs. Ordiales, 42 SCRA 238.
[33] Tsn, October 14, 1994 at p. 10; Tsn, November 25, 1994 at p. 6; Tsn, September 8, 1995 at p. 20; Tsn, October 20, 1995 at p. 2