THIRD DIVISION
[ G.R. No. 139822, December 06, 2000 ]PEOPLE v. SALVADOR CAGUING +
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR CAGUING, ACCUSED-APPELLANT.
D E C I S I O N
PEOPLE v. SALVADOR CAGUING +
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SALVADOR CAGUING, ACCUSED-APPELLANT.
D E C I S I O N
MELO, J.:
Accused-appellant Salvador Caguing was charged with the crime of murder in Criminal Case No. 34267 of the Regional Trial Court of the Sixth Judicial Region (Branch 33, Iloilo City), under the following Information:
At his arraignment on August 27, 1997, accused-appellant entered a plea of not guilty. Trial ensued thereafter.
The prosecution's version of the generative facts as gathered from the testimony of its witnesses - Guillermo Dominguez, father of the victim, and Annalyn Dominguez, sister of the victim - is abstracted in the Appellee's Brief, as follows:
Dr. Mae Albacite, the Rural Health Physician who conducted the autopsy on the victim's body, testified: that the cause of death of the victim was severe hemorrhage from a skull fracture due to a gunshot wound in the head; that the wound was located at the forehead, front with frontal and parietal bones missing which are parts of the skull; that the frontal lobe of the brain was already scattered on the face and skull of the victim; that there was the presence of an incised and gaping wound two inches by five inches located above the right ear up to the backbone located at the right side of the back; that the wound located at the frontal area with missing frontal and parietal bones was caused by a gunshot; that with regard to the incised wound, it had rugged edges which could have been caused by a blunt object and there was the probability that it was caused by forcible tearing of the tissue due to impact of the gunshot; that even with adequate medical attention the probability of the victim living was nil because a vital organ was involved; and that there is a probability that the assailant was in front of the victim.
The version of the defense is based on the testimony of Noe Malcaredo yBebot, friend of accused-appellant, and accused-appellant himself. Accused-appellant denied the charge. The defense that accused-appellant and the victim had an altercation and that he shot the victim in self-defense was also advanced.
On March 20, 1999, a judgment of conviction was rendered, disposing:
In accused-appellant's brief, he assigns the following alleged errors:
He particularly argues that treachery is negated by the fact that if accused-appellant were indeed armed when he arrived at 8 o'clock in the evening, an hour prior to the shooting incident, that would have already put the victim on guard; that both prosecution witnesses never testified that accused-appellant was armed when he entered the place of the incident and their testimony are full of inconsistencies; that it was the victim's persistence in attacking accused-appellant with a knife which led accused-appellant to shoot the victim in self-defense; and lastly, the declarations of the prosecution witnesses do not indicate any possible motive for accused-appellant to shoot the victim.
Undisputed is the fact that accused-appellant shot one Allan Dominguez. Categorically, he admitted that he shot the victim once in the forehead but asserts that he did so in self-defense.
In self-defense, the burden of proof rests upon the accused (People vs. Timblor, 385 SCRA 64 [1998]). It is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself, otherwise, conviction would follow from his admission that he killed the victim (People vs. Cario, 288 SCRA 404 [1998]). There are three requisites to prove the claim of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed by the accused to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof (People vs. Aguilar, 292 SCRA 349 [1998]). The person defending himself must have been attacked with actual physical force or with actual use of weapon. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself (People vs. Cario, supra [1998]).
In this case, the testimony of accused-appellant himself belies the claim that he merely acted to prevent or repel the unlawful aggression allegedly coming from the victim. Accused-appellant's unequivocal statements in open court lead to the conclusion that, assuming arguendo that the victim indeed attempted to shoot accused-appellant with a handgun, this aggression had ceased by the time accused-appellant was able to take possession of the gun. In other words, when accused-appellant successfully grabbed the gun from the victim, there was no longer any unlawful aggression to prevent or repel. And this Court has consistently held that when the unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the former aggressor (People vs. Albao, 287 SCRA 129 [1999]; People vs. Sambulan, 239 SCRA 500 [1999]). Withal, a finding that there was no longer any unlawful aggression when the accused shot the victim rules out the possibility of self-defense, whether complete or incomplete (David vs. Court of Appeals, 290 SCRA 727 [1998]).
Just to be on the safe side, accused-appellant embellishes his story by alleging that the victim, after having been disarmed of the gun, continued his aggression with a knife. Here now comes the second element of self defense. For such posture to be properly appreciated, there should be a necessity in both the action taken as well as in the means used, and the latter depends on whether the aggressor himself was armed, the nature and quality of the weapon used, and the physical conditions and sizes of both the aggressor and the person defending himself (Escoto vs. CA, 273 SCRA 752 [1997]). Undoubtedly, if it is true that the victim had a knife and accused-appellant had a gun, his shooting the victim may not be justified as accused-appellant could not have been in any real danger of his life. The knife was no match to the home-made handgun of accused-appellant and, in fact, there is no evidence that accused-appellant sustained any injuries evincive of an aggression which would justify his firing the gun to protect himself. Thus, the shooting was unwarranted and was an unreasonable act of violence, even as a means of defense, under the circumstances. Moreover, accused-appellant left his victim and did not even bother to report the matter to the proper authorities. In this light, the justifying circumstance of self-defense may not survive in the face of accused-appellant's flight from the crime scene, and his failure to inform the authorities of the incident (People vs. Gerolaga, 263 SCRA 143 [1997]). Too, no knife was found in the crime scene, thus negating his tale of a second aggression.
All told, the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is also extremely doubtful in itself (Jacobo vs. CA, 270 SCRA 270 [1997]). Accused-appellant having failed to discharge the burden proving his defense, his conviction shall of necessity follow, on the basis of his admission to the killing.
Accused-appellant argues that there was misappreciation of evidence since the judge who decided the case was not the one who heard the evidence for the prosecution. We cannot ascribe merit to the argument since it is well-recognized that the trial judge's assessment of the credibility of a testimony is not to be anchored solely on how the witness conducted himself on the witness stand. Aside from the danger of being misled by appearance inherent in such a case, a judge is supposed to render a decision on the basis of the evidence before him, meaning, the record and all. The failure, to be sure, of the trial judge to have personally observed the prosecution witnesses' manner and demeanor of testifying in no way affects the validity of the judgment rendered nor does ipso facto condemn the judgment erroneous, more so where the same appears to be fully supported by the evidence on record, as in the case at bar (People vs. Rayray, 241 SCRA 1 [1995]).
Nonetheless, while the Court affirms the guilt of accused-appellant it is not persuaded that there was treachery which would qualify the killing of Allan to murder.
Treachery exists when the offender employs means, methods, or forms in the execution of the offense which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make (People vs. Sumalpong, 284 SCRA 464 [1998]). In order for treachery to be taken as an aggravating circumstance, there must be proof that accused-appellant had consciously adopted a mode of attack to facilitate the perpetration of the killing without risk to himself (People vs. Quitlong, 292 SCRA 360 [1998]).
It should preliminarily be observed that both the prosecution and the defense witnesses are consistent in their assertions that accused-appellant and his companion Bebot arrived in the crime scene at around 8 o'clock in the evening; and that accused-appellant and his friend stayed on and conversed with the spouses Gonzalo and Duliana Cornita in the kitchen where Allan and his father Guillermo, and one Romulo Percy were at that time. It appears then that before accused-appellant shot the victim, he had been there for about an hour, during which time there had been an on going drinking spree. For this reason, the Court finds it difficult to believe that Allan, Guillermo, spouses Gonzalo and Cornita, one Romulo Percy, and accused-appellant and companion were all in one and the same kitchen, seated around in one and the same table, and not talking to one another for about an hour. The Court perceives as odd and unnatural that while Allan was seated alongside Bebot and accused-appellant from 8 o'clock to 9 o'clock in the evening, they did not engage in any sort of conversation or discussion. Even the testimony of Guillermo that Allan did not know accused-appellant and vice versa, so that accused-appellant had to wait an hour to ask for the victim's identity in order to kill him, is doubtful. It is of judicial notice that people in rural communities generally know each other both by face and name (People vs. Reynaldo, 291 SCRA 701 [1998]). Even the then 11-year-old Analyn claimed she knew accused-appellant (tsn, Dec. 10, 1997, p. 4) making it doubly hard for the Court to believe that accused-appellant and the victim did not know each other.
Another point to consider is the testimony of Analyn which narrated the incident in this wise:
Further, the testimony of Guillermo and Analyn are contradictory in relation to the physical position of Guillermo at the time of the killing. Guillermo testified that he was likewise seated around the table. On the other hand, Analyn said Guillermo was taking a rest in the "papag".
The general rule is that inconsistencies and contradictions in minor and trivial matter do not impair a witness' credibility. However, the contradictory statements and omission of important details by the prosecution witnesses erode the credence of their testimony (People vs. Ortiz, 266 SCRA 641 [1997]). The physical position of Guillermo when the victim was killed by accused-appellant is one vital circumstance that would establish whether or not he had really seen how the accused-appellant shot the victim which will consequently prove the attendance of treachery in the killing of the victim. The prosecution failed in this endeavor.
It must be stressed that treachery cannot be presumed, it must be proved by clear and convincing evidence, or as conclusively as the killing itself (People vs. Peña, 291 SCRA 606 [1998]). In treachery, the mode of attack must have been sought of by the offender (People vs. Demonteverde, 290 SCRA 175 [1998]), and the manner of attack must be proven; it cannot be presumed or concluded merely on the basis of the resulting crime (People vs. Asis, 286 SCRA 64 [1998]).
Verily, treachery does not exist in this case because the evidence does not show that accused-appellant deliberately adopted a mode of attack intended to insure the killing of Allan with impunity, and without giving the victim an opportunity to defend himself. The prosecution failed to distinctively establish the manner in which the assault against the deceased was committed to justify the appreciation of treachery. No particulars are shown as to the manner by which the aggression was commenced or how the act which resulted in the death of the victim began and developed. Treachery can in no way be established from mere supposition, drawn solely from circumstances prior to the killing (People vs. Cario, supra). The crime committed, therefore, is not murder but the lesser crime of homicide under Article 249 of the Revised Penal Code.
Article 249 of the Revised Penal Code punishes homicide with reclusion temporal. There being no mitigating or aggravating circumstances attending the crime, the penalty should be imposed in its medium period (Art. 64 [1], Revised Penal Code). Applying the Indeterminate Sentence Law, the penalty shall be an indeterminate sentence, the minimum whereof shall be within the range of prision mayor, and the maximum shall be reclusion temporal in its medium period.
Anent the award of damages, the Court cannot sustain the award of P50,000.00 as exemplary damages in favor of the heirs of Allan Dominguez, as no aggravating circumstance was proved in this case (People vs. Bernaldez, 294 SCRA 317 [1998]). The award of actual damages of P9,250.00 as reimbursement for the expenses incurred for the wake, burial, and funeral expenses as supported by receipts, and the affirmance of the award of P50,000 as indemnity for the loss of Allan's life are in order. Lastly, the award of moral damages in the increased amount of P50,000.00 to compensate the heirs for injuries to their feelings is more in accord with recent jurisprudence.
WHEREFORE, the appealed judgment of the Regional Trial Court is hereby MODIFIED. Accused-appellant Salvador Caguing is hereby found guilty of Homicide and sentenced to suffer an indeterminate prison term of Twelve (12) Years of prision mayor, as minimum, to Seventeen (17) Years and Four (4) Months of reclusion temporal, as maximum. Accused-appellant is further ordered to pay the heirs of the victim death indemnity of P50,000.00; moral damages of P50,000.00; and actual damages of P9,250.00.
SO ORDERED.
Vitug, Panganaiban, and Gonzaga-Reyes, JJ., concur.
That on or about the 12th day of December, 1989, in the Municipality of Cabatuan, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, with deliberate intent and decided purpose to kill, with treachery and evident premeditation, armed with a 12 gauge homemade shotgun, commonly known as "pugakhang" and without any justifiable cause or motive, did then and there wilfully, unlawfully and feloniously assault, attack and shoot one ALLAN DOMINGUEZ with the firearm accused was then provided, inflicting upon said victim fatal gunshot wound on the head which caused the immediate death of said Allan Dominguez.
Contrary to law.
(p. 8, Rollo.)
At his arraignment on August 27, 1997, accused-appellant entered a plea of not guilty. Trial ensued thereafter.
The prosecution's version of the generative facts as gathered from the testimony of its witnesses - Guillermo Dominguez, father of the victim, and Annalyn Dominguez, sister of the victim - is abstracted in the Appellee's Brief, as follows:
At around 9:00 o'clock in the evening of December 12, 1989, prosecution witnesses Guillermo Dominguez and his Daughter Annalyn Dominguez, together with his son, Allan Dominguez, were in the house of the spouses Gonzalo and Duliana Cornita situated at Janipaan Central, Cabatuan, Iloilo.
Appellant Salvador Caguing and his companion Bebot Malcaredo were also inside said house. Appellant was engaged in conversation with the spouses Gonzalo and Duliana Cornita. In the course thereof, appellant asked for the identity of Allan Dominguez.
After finding out the identity of Allan, appellant suddenly shot the former on the head with a shotgun resulting in his instantaneous death. Allan was seated on a chair beside a table while appellant was standing when the former was fatally shot.
Afterwards, appellant reloaded his shotgun and warned the people inside the house not to move. Thereafter, appellant and his companion Bebot Malcaredo fled.
(pp. 84-85, Rollo.)
Dr. Mae Albacite, the Rural Health Physician who conducted the autopsy on the victim's body, testified: that the cause of death of the victim was severe hemorrhage from a skull fracture due to a gunshot wound in the head; that the wound was located at the forehead, front with frontal and parietal bones missing which are parts of the skull; that the frontal lobe of the brain was already scattered on the face and skull of the victim; that there was the presence of an incised and gaping wound two inches by five inches located above the right ear up to the backbone located at the right side of the back; that the wound located at the frontal area with missing frontal and parietal bones was caused by a gunshot; that with regard to the incised wound, it had rugged edges which could have been caused by a blunt object and there was the probability that it was caused by forcible tearing of the tissue due to impact of the gunshot; that even with adequate medical attention the probability of the victim living was nil because a vital organ was involved; and that there is a probability that the assailant was in front of the victim.
The version of the defense is based on the testimony of Noe Malcaredo yBebot, friend of accused-appellant, and accused-appellant himself. Accused-appellant denied the charge. The defense that accused-appellant and the victim had an altercation and that he shot the victim in self-defense was also advanced.
On March 20, 1999, a judgment of conviction was rendered, disposing:
WHEREFORE, this Court finds and so holds that:
- Accused Salvador Caguing y Caballero is guilty of Murder as defined and penalized by Art. 248, Revised Penal Code, as proven beyond reasonable doubt by the evidence on record;
- The penalty of Reclusion Perpetua is hereby imposed upon him because neither aggravating nor mitigating circumstance is present.
- Accused Salvador Caguing is further ordered to indemnify the heirs of the victim Allan Dominguez the amount of P50,000.00; to pay the amount of P50,000.00 as exemplary damages and the sum of P30,000.00 as moral damages, and with subsidiary imprisonment in case of insolvency.
SO ORDERED.
(pp. 24-25, Rollo.)
In accused-appellant's brief, he assigns the following alleged errors:
I
THE TRIAL COURT ERRED IN NOT FINDING THAT THE ACCUSED, AFTER DISARMING THE VICTIM, SHOT THE SAID VICTIM IN SELF-DEFENSE.
II
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE "DEMEANOR" OF THE PROSECUTION WITNESSES WHEN IN FACT THE PRESIDING JUDGE NEVER WITNESSED IN COURT SAID "DEMEANOR" BECAUSE HE TOOK OVER THE CASE ONLY AFTER THE PROSECUTION HAS RESTED.
III
THE TRIAL COURT ERRED IN MAKING FINDINGS NOT BASED OR FOUND IN THE TRANSCRIPT OF STENOGRAPHIC NOTES WHICH INDICATE THE PRESIDING JUDGE DID NOT EXTENSIVELY GO OVER THE SAME, AS HE SHOULD DO, HAVING TAKEN OVER IN HEARING THE CASE ONLY AFTER THE PROSECUTION HAS RESTED.
(pp. 39-40, Rollo.)
He particularly argues that treachery is negated by the fact that if accused-appellant were indeed armed when he arrived at 8 o'clock in the evening, an hour prior to the shooting incident, that would have already put the victim on guard; that both prosecution witnesses never testified that accused-appellant was armed when he entered the place of the incident and their testimony are full of inconsistencies; that it was the victim's persistence in attacking accused-appellant with a knife which led accused-appellant to shoot the victim in self-defense; and lastly, the declarations of the prosecution witnesses do not indicate any possible motive for accused-appellant to shoot the victim.
Undisputed is the fact that accused-appellant shot one Allan Dominguez. Categorically, he admitted that he shot the victim once in the forehead but asserts that he did so in self-defense.
In self-defense, the burden of proof rests upon the accused (People vs. Timblor, 385 SCRA 64 [1998]). It is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself, otherwise, conviction would follow from his admission that he killed the victim (People vs. Cario, 288 SCRA 404 [1998]). There are three requisites to prove the claim of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed by the accused to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.
Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof (People vs. Aguilar, 292 SCRA 349 [1998]). The person defending himself must have been attacked with actual physical force or with actual use of weapon. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself (People vs. Cario, supra [1998]).
In this case, the testimony of accused-appellant himself belies the claim that he merely acted to prevent or repel the unlawful aggression allegedly coming from the victim. Accused-appellant's unequivocal statements in open court lead to the conclusion that, assuming arguendo that the victim indeed attempted to shoot accused-appellant with a handgun, this aggression had ceased by the time accused-appellant was able to take possession of the gun. In other words, when accused-appellant successfully grabbed the gun from the victim, there was no longer any unlawful aggression to prevent or repel. And this Court has consistently held that when the unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the former aggressor (People vs. Albao, 287 SCRA 129 [1999]; People vs. Sambulan, 239 SCRA 500 [1999]). Withal, a finding that there was no longer any unlawful aggression when the accused shot the victim rules out the possibility of self-defense, whether complete or incomplete (David vs. Court of Appeals, 290 SCRA 727 [1998]).
Just to be on the safe side, accused-appellant embellishes his story by alleging that the victim, after having been disarmed of the gun, continued his aggression with a knife. Here now comes the second element of self defense. For such posture to be properly appreciated, there should be a necessity in both the action taken as well as in the means used, and the latter depends on whether the aggressor himself was armed, the nature and quality of the weapon used, and the physical conditions and sizes of both the aggressor and the person defending himself (Escoto vs. CA, 273 SCRA 752 [1997]). Undoubtedly, if it is true that the victim had a knife and accused-appellant had a gun, his shooting the victim may not be justified as accused-appellant could not have been in any real danger of his life. The knife was no match to the home-made handgun of accused-appellant and, in fact, there is no evidence that accused-appellant sustained any injuries evincive of an aggression which would justify his firing the gun to protect himself. Thus, the shooting was unwarranted and was an unreasonable act of violence, even as a means of defense, under the circumstances. Moreover, accused-appellant left his victim and did not even bother to report the matter to the proper authorities. In this light, the justifying circumstance of self-defense may not survive in the face of accused-appellant's flight from the crime scene, and his failure to inform the authorities of the incident (People vs. Gerolaga, 263 SCRA 143 [1997]). Too, no knife was found in the crime scene, thus negating his tale of a second aggression.
All told, the plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is also extremely doubtful in itself (Jacobo vs. CA, 270 SCRA 270 [1997]). Accused-appellant having failed to discharge the burden proving his defense, his conviction shall of necessity follow, on the basis of his admission to the killing.
Accused-appellant argues that there was misappreciation of evidence since the judge who decided the case was not the one who heard the evidence for the prosecution. We cannot ascribe merit to the argument since it is well-recognized that the trial judge's assessment of the credibility of a testimony is not to be anchored solely on how the witness conducted himself on the witness stand. Aside from the danger of being misled by appearance inherent in such a case, a judge is supposed to render a decision on the basis of the evidence before him, meaning, the record and all. The failure, to be sure, of the trial judge to have personally observed the prosecution witnesses' manner and demeanor of testifying in no way affects the validity of the judgment rendered nor does ipso facto condemn the judgment erroneous, more so where the same appears to be fully supported by the evidence on record, as in the case at bar (People vs. Rayray, 241 SCRA 1 [1995]).
Nonetheless, while the Court affirms the guilt of accused-appellant it is not persuaded that there was treachery which would qualify the killing of Allan to murder.
Treachery exists when the offender employs means, methods, or forms in the execution of the offense which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make (People vs. Sumalpong, 284 SCRA 464 [1998]). In order for treachery to be taken as an aggravating circumstance, there must be proof that accused-appellant had consciously adopted a mode of attack to facilitate the perpetration of the killing without risk to himself (People vs. Quitlong, 292 SCRA 360 [1998]).
It should preliminarily be observed that both the prosecution and the defense witnesses are consistent in their assertions that accused-appellant and his companion Bebot arrived in the crime scene at around 8 o'clock in the evening; and that accused-appellant and his friend stayed on and conversed with the spouses Gonzalo and Duliana Cornita in the kitchen where Allan and his father Guillermo, and one Romulo Percy were at that time. It appears then that before accused-appellant shot the victim, he had been there for about an hour, during which time there had been an on going drinking spree. For this reason, the Court finds it difficult to believe that Allan, Guillermo, spouses Gonzalo and Cornita, one Romulo Percy, and accused-appellant and companion were all in one and the same kitchen, seated around in one and the same table, and not talking to one another for about an hour. The Court perceives as odd and unnatural that while Allan was seated alongside Bebot and accused-appellant from 8 o'clock to 9 o'clock in the evening, they did not engage in any sort of conversation or discussion. Even the testimony of Guillermo that Allan did not know accused-appellant and vice versa, so that accused-appellant had to wait an hour to ask for the victim's identity in order to kill him, is doubtful. It is of judicial notice that people in rural communities generally know each other both by face and name (People vs. Reynaldo, 291 SCRA 701 [1998]). Even the then 11-year-old Analyn claimed she knew accused-appellant (tsn, Dec. 10, 1997, p. 4) making it doubly hard for the Court to believe that accused-appellant and the victim did not know each other.
Another point to consider is the testimony of Analyn which narrated the incident in this wise:
So far as one can see, it cannot be said that Analyn witnessed how his brother Allan was killed by accused-appellant. Admittedly, she was unmindful of what was going on in the kitchen because she herself was conversing with her friends in the sala. What caught her attention was the gunshot that she heard coming from the kitchen and she inferred that accused-appellant shot his brother Allan.
(Ibid., p. 12.) x x x x x x x x x (Ibid., p. 22.) x x x x x x x x x (Ibid., p. 21.)
Further, the testimony of Guillermo and Analyn are contradictory in relation to the physical position of Guillermo at the time of the killing. Guillermo testified that he was likewise seated around the table. On the other hand, Analyn said Guillermo was taking a rest in the "papag".
The general rule is that inconsistencies and contradictions in minor and trivial matter do not impair a witness' credibility. However, the contradictory statements and omission of important details by the prosecution witnesses erode the credence of their testimony (People vs. Ortiz, 266 SCRA 641 [1997]). The physical position of Guillermo when the victim was killed by accused-appellant is one vital circumstance that would establish whether or not he had really seen how the accused-appellant shot the victim which will consequently prove the attendance of treachery in the killing of the victim. The prosecution failed in this endeavor.
It must be stressed that treachery cannot be presumed, it must be proved by clear and convincing evidence, or as conclusively as the killing itself (People vs. Peña, 291 SCRA 606 [1998]). In treachery, the mode of attack must have been sought of by the offender (People vs. Demonteverde, 290 SCRA 175 [1998]), and the manner of attack must be proven; it cannot be presumed or concluded merely on the basis of the resulting crime (People vs. Asis, 286 SCRA 64 [1998]).
Verily, treachery does not exist in this case because the evidence does not show that accused-appellant deliberately adopted a mode of attack intended to insure the killing of Allan with impunity, and without giving the victim an opportunity to defend himself. The prosecution failed to distinctively establish the manner in which the assault against the deceased was committed to justify the appreciation of treachery. No particulars are shown as to the manner by which the aggression was commenced or how the act which resulted in the death of the victim began and developed. Treachery can in no way be established from mere supposition, drawn solely from circumstances prior to the killing (People vs. Cario, supra). The crime committed, therefore, is not murder but the lesser crime of homicide under Article 249 of the Revised Penal Code.
Article 249 of the Revised Penal Code punishes homicide with reclusion temporal. There being no mitigating or aggravating circumstances attending the crime, the penalty should be imposed in its medium period (Art. 64 [1], Revised Penal Code). Applying the Indeterminate Sentence Law, the penalty shall be an indeterminate sentence, the minimum whereof shall be within the range of prision mayor, and the maximum shall be reclusion temporal in its medium period.
Anent the award of damages, the Court cannot sustain the award of P50,000.00 as exemplary damages in favor of the heirs of Allan Dominguez, as no aggravating circumstance was proved in this case (People vs. Bernaldez, 294 SCRA 317 [1998]). The award of actual damages of P9,250.00 as reimbursement for the expenses incurred for the wake, burial, and funeral expenses as supported by receipts, and the affirmance of the award of P50,000 as indemnity for the loss of Allan's life are in order. Lastly, the award of moral damages in the increased amount of P50,000.00 to compensate the heirs for injuries to their feelings is more in accord with recent jurisprudence.
WHEREFORE, the appealed judgment of the Regional Trial Court is hereby MODIFIED. Accused-appellant Salvador Caguing is hereby found guilty of Homicide and sentenced to suffer an indeterminate prison term of Twelve (12) Years of prision mayor, as minimum, to Seventeen (17) Years and Four (4) Months of reclusion temporal, as maximum. Accused-appellant is further ordered to pay the heirs of the victim death indemnity of P50,000.00; moral damages of P50,000.00; and actual damages of P9,250.00.
SO ORDERED.
Vitug, Panganaiban, and Gonzaga-Reyes, JJ., concur.