THIRD DIVISION
[ G.R. No. 179499, April 30, 2008 ]PEOPLE v. TORIBIO JABINIAO +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TORIBIO JABINIAO, JR. AND JOHN DOE, ACCUSED-APPELLANTS.
D E C I S I O N
PEOPLE v. TORIBIO JABINIAO +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. TORIBIO JABINIAO, JR. AND JOHN DOE, ACCUSED-APPELLANTS.
D E C I S I O N
CHICO-NAZARIO, J.:
This is an appeal from the Decision[1] dated 19 July 2006 of the Court of Appeals in CA-G.R. CR-HC No. 00334-MIN affirming with modification the Decision of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 25, finding
appellant Toribio Jabiniao, Jr., guilty of the crime of Robbery with Homicide.
On 10 March 1999, an Amended Information was filed against appellant Jabiniao before the RTC of Cagayan de Oro City, charging him with the crime of Robbery with Homicide, penalized under Article 294 in relation to Article 14 of the Revised Penal Code, as amended by Republic Act No. 7659, allegedly committed as follows:
The prosecution presented as its witnesses Maria Divina Pasilang, Ireneo Haclad, SPO1 Bladimer Fabre Agbalog, SPO4 Hilario Balensola, PO1 Fernando Edoria, Dr. Efren Celeste, Dawn Florendo, Atty. Eleuteria Algodon and Rolando Jabiniao.
Private complainant Maria Divina Pasilang testified that at around 1:00 a.m. of 27 August 1998, she and her husband, the deceased Ruben Pasilang, were sleeping in their house in Cugman, Cagayan de Oro City. They were awakened when Maria Divina felt someone kick her thighs. When she opened her eyes, she saw appellant Jabiniao, who was short and muscular, wearing a pair of short pants but without any shirt on, with a holster on his shoulder and a bonnet or ski mask on his face. He had a masked companion who stayed at the door outside their house, acting as a lookout. Appellant Jabiniao pointed his gun at Maria Divina and Ruben and demanded money from them. They were not able to say a word as they were both trembling in fear. Appellant Jabiniao ransacked the drawer for money and other belongings and took P2,000.00 and Maria Divina's shoulder bag. Appellant Jabiniao removed his mask, revealing his face.
Appellant Jabiniao approached Maria Divina, raised her duster and stroked her thighs. She mercifully begged not to be touched in exchange for all their belongings. Ruben likewise pleaded and told appellant Jabiniao that he could take all their things. Appellant Jabiniao, however, continued stroking Maria Divina's thigh. He then stood up and cut the wire of an electric fan which he used to tie Ruben's feet. Appellant Jabiniao then proceeded to tie Ruben's hands with the strap of Maria Divina's bag, but Ruben resisted and was able to free his hands from appellant Jabiniao's hold. Appellant Jabiniao ran towards the door. Ruben crawled and knelt towards the door and closed it. A few seconds later, gunshots were fired from the outside which pierced through the door, hitting the chest of Ruben. Maria Divina heard appellant Jabiniao and his masked companion pass through the gate and flee the area. Maria Divina went to Ruben and embraced him. Ruben said: "Mards, I am going to die because of the wound." She replied, "Do not succumb to the pain because you still have children who need your care." Maria Divina shouted for help. Her nearest neighbor, Nang Emie, answered: "We are afraid, Day, to help because of the gunfire." Ruben died in Maria Divina's arms.[3]
Appellant Jabiniao was arrested on 14 September 1998. The following day, on 15 September 1998, policemen asked Maria Divina to identify her assailant. Maria Divina immediately identified appellant Jabiniao.
Maria Divina also testified that she misses her husband and was worried about the future of her children. Ruben was earning P200.00 a day as a foreman of a building contractor. She spent P500.00 every night for ten days as wake expenses, P6,000.00 for the 9th day rites, and P1,000.00 for the 40th day rites. She also paid P1,800.00 for the coffin and P3,000.00 for the tomb.[4]
Barangay Tanod Ireneo Haclad testified that on 14 September 1998, he accompanied the police officers who served the warrant of arrest on appellant. At around 3 p.m. of the same day, upon seeing the policemen, appellant tried to pull his gun but was deterred when one of the policemen fired two warning shots and ordered him to stop and drop his gun. A policeman then tackled and handcuffed him. The policemen retrieved from appellant a black bonnet or ski mask, a holster and a "paltik" .38 caliber gun with five bullets and one empty shell. SPO1 Bladimer Fabre Agbalog corroborated this account.
SPO4 Hilario Balensola Rosilla, Jr., senior police officer of the Firearms and Explosives Unit of the Philippine National Police, testified to his 9 March 1999 Certification that appellant was not among those included in the list of registered firearm holders, nor was he issued a permit to carry a firearm outside of residence.
PO1 Fernando Edoria, who was assigned to the Warrant and Subpoena Section and the Central Record Section of the PNP, Cagayan de Oro City, testified that his office issued a Certification dated 20 May 1999 stating that appellant Jabiniao has three criminal records, as follows: (1) Robbery with Homicide [CC Nr 98-953]; (2) Murder [CC Nr 96-374]; and (3) Illegal Possession of Firearms [CC Nr 96-10-40-96].
Dr. Efren Celeste, Medical Officer IV of the City Health Department of Cagayan de Oro City, issued a Death Certificate dated 1 September 1998 stating that Ruben's causes of death are the following:
Appellant Jabiniao's brother, Rolando Jabiniao, testified that appellant Jabiniao was not in his house on 26 August 1998 or within the vicinity of Mintugsok, Cugman. He did not know where appellant Jabiniao was when the crime was committed.
The defense, on the other hand, presented as its witnesses appellant Jabiniao himself, Leonardo Gacang and Felix Ramos.
Appellant Jabiniao, a hollow block maker and a resident of Dao, Gusa, Cagayan de Oro City, denied any involvement or participation in the crime. He claimed that on 26 August 1998, he was in the house of his mother at Mintugsok, Cugman, which is only five meters away from the house of his brother, Rolando Jabiniao. He was sick at that time and was attended to by his mother. The next day, on 27 August 1998, he and a certain Eusebio Riyas removed corn from the kernel at around 1:00 a.m. On 14 September 1998, while he was again removing corn from the kernel, he heard three warning gunshots and was surprised to be arrested by the police in the presence of his brother, Rolando Jabiniao. Appellant Jabiniao claims that complainant Maria Divina was just coached by the police officers when the latter pointed to him as the assailant. This time around, he denied possession of a bonnet and a firearm.
Leonardo Gacang, a tuba gatherer, farmer and hilot, claims that on 26 August 1998, Toribio Jabiniao, Sr., the father of appellant Jabiniao, fetched and brought him to Mintugsok, Cugman, to heal appellant Jabiniao, who was having stomachache. He observed that appellant Jabiniao could not stand because of his illness. Gacang administered hilot on appellant Jabiniao and gave the latter a concoction extracted from boiled young leaves of guava, santol and kaimito for him to drink. He left the house at around 4:00 p.m.
Felix Ramos, former neighbor of appellant Jabiniao, testified that on 26 August 1998, at around 9:00 a.m., he went to his farm in Mintugsok, Cugman. That afternoon, he went to the nearby house of Rolando Jabiniao to ask for water. When he was inside, he saw appellant lying flat on the floor, pressing a pillow to his stomach. A few minutes later, Toribio Jabiniao, Sr. arrived. Felix left the house when Gacang started to administer hilot to appellant Jabiniao.
On 19 April 2000, the trial court found appellant Jabiniao guilty beyond reasonable doubt of the crime of Robbery with Homicide and imposed upon him the death penalty:
Appellant Jabiniao appealed the Decision of the trial court to the Court of Appeals. On 19 July 2006, the Court of Appeals affirmed with modification the findings of the trial court, to wit:
In asserting that his guilt has not been proven beyond reasonable doubt, appellant Jabiniao claims the contention of Maria Divina that the perpetrator removed his mask when he was searching the cabinet of the victim was tainted with falsehood, arguing that a robber who intended to hide his face would not conveniently remove his mask to reveal his identity. Appellant Jabiniao likewise points to the portion in Maria Divina's testimony wherein the robber panicked and ran away when Ruben was able to untie his hands. Appellant Jabiniao argues that this is incredible, as Ruben's feet had still been tied with a cord at that time, while the assailant was armed with a gun. Appellant Jabiniao thus offers his theory that he was pinned down by police officers for already facing several other criminal charges.
We are not convinced.
Unable to find inconsistencies in the prosecution's account of the alleged crime, appellant Jabiniao desperately seeks the indulgence of this Court by invoking what it claims to be natural reactions to a given situation. He claims that it is incredible for an assailant who had purposely concealed his identity with a bonnet or ski mask to remove the same while still in the presence of the victims. He claims that it is incredible for an assailant with a gun to panic when his nemesis was tied at the feet.
To a certain extent, a logical and methodical assailant having nerves of steel would probably not do what the alleged assailant in the case at bar did. But while we can agree that an assailant who had purposely concealed his identity with a ski mask would probably not remove the same while still in the presence of the victims, and that an assailant with a gun would probably not panic while his nemesis was tied at the feet, we cannot say that an account claiming the contrary is incredible.
There is no reason why the oft-quoted axiom - that there is no standard form of behavior when one is confronted with a shocking incident[9] - should not apply to everyone present in such incident. Furthermore, a reading of Maria Divina's account shows that she and Ruben appeared to be compliant to all the wishes of the assailant at the start. At the time the assailant allegedly removed his ski mask, said assailant appeared to be in complete control and had absolutely no reason to panic. Ruben even told the assailant to take everything he can.[10] The assailant could have been lured to a false sense of security which allowed him to remove an uncomfortable piece of clothing. On the other hand, Ruben's attempt to untie himself from Maria Divina's bag's strap was the very first resistance offered by the victims. Ruben's actually being able to untie himself would certainly be a reason for the assailant to panic after he had thought he was in complete control. As stated by the Court of Appeals, Maria Divina's testimony was clear and straightforward, and survived a grueling cross-examination. Thus, on cross, Maria Divina testified:
According to appellant Jabiniao, assuming arguendo that he was the real perpetrator, his conviction for the special complex crime of Robbery with Homicide is erroneous. He claims that since he had already run away from the house of the victim when he fired the gun and accidentally hit the victim, the robbery had already been accomplished when the killing occurred.
We disagree.
The crime of Robbery with Homicide is punished under Article 294 of the Revised Penal Code, which provides, in part:
In the case at bar, appellant Jabiniao demanded money from Maria Divina and Ruben from the very start, plainly manifesting his and his companion's original intent to commit robbery. It was only after Ruben freed his hands when appellant Jabiniao panicked, ran outside the door and fired gunshots from the outside. Clearly, appellant Jabiniao fired the shots in order to facilitate his escape and eliminate his victims who could become witnesses against him and his companion.
We agree with both lower courts that the aggravating circumstances of (a) use of unlicensed firearm; (b) dwelling; and (c) treachery, which were alleged in the information, were established. With the presence of these aggravating circumstances, the penalty imposed should be the maximum, which is death.
However, in view of the enactment of Republic Act No. 9346 or the Act Prohibiting the Imposition of Death Penalty on 24 June 2006, the penalty thereat that should be meted must be reduced from death to reclusion perpetua without eligibility for parole.
Whether courts a quo correctly ruled on the civil liabilities of appellant Jabiniao.
It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of the assignment of errors or not.[15]
As to damages, when death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest in proper cases.[16]
The amount of P75,000.00 for civil indemnity awarded by the trial court as affirmed by the Court of Appeals, is sustained. The award for civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime.[17] The amount of P75,000.00 as civil indemnity is awarded only if the crime is qualified by circumstances which warrant the imposition of the death penalty.[18] Though the penalty imposed on appellant was reduced to reclusion perpetua, the civil indemnity to be awarded remains at P75,000.00.
The Court of Appeals however modified the awards for moral damages and exemplary damages. The Court of Appeals reduced the trial court's award of moral damages from P75,000.00 to P50,000.00. We agree with this change, pursuant to current jurisprudence.[19] As held by the Court of Appeals, moral damages are awarded in cases of violent deaths even in the absence of proof of mental and emotional suffering of the victim's heirs, because the violent and sudden death of a loved one invariably and necessarily brings about emotional pain and anguish on the part of the victim's family.[20]
We also agree with the award of exemplary damages in the amount of P25,000.00. Exemplary damages may be imposed when the crime is committed with one or more aggravating circumstances.[21] As held above, appellant Jabiniao's crime was aggravated by (1) the use of an unlicensed firearm; (2) commission of the crime in the dwelling of the victims; and (3) treachery.
The Court of Appeals, however, should have added an award for loss of earning capacity. Maria Divina testified that Ruben was earning P200.00 a day prior to his death.[22] While Maria Divina failed to substantiate this amount, we held in the similar case of People v. Laut[23] that:
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 19 July 2006 in CA-G.R. CR-HC No. 00334-MIN is AFFIRMED with MODIFICATION. Appellant Toribio Jabiniao, Jr., is found GUILTY of the crime of Robbery with Homicide as defined in Article 294 of the Revised Penal Code, as amended. The proper imposable penalty would have been death. However, pursuant to Republic Act No. 9346, appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. Appellant is ordered to pay the heirs of Ruben Pasilang the amounts of P75,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as exemplary damages; P25,000.00 as temperate damages; P816,000.00 as indemnity for loss of earning capacity; and P2,000.00 as restitution for the amount taken from the victim. No costs.
SO ORDERED.
Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.
[1] Penned by Associate Justice Ramon R. Garcia with Associate Justices Romulo V. Borja and Antonio L. Villamor, concurring. Rollo, pp. 4-26.
[2] Records, pp. 51-52.
[3] CA rollo, p. 23.
[4] Id. at 24.
[5] Records, p. 23.
[6] Id. at 493.
[7] CA rollo, p. 147.
[8] Id. at 77.
[9] People v. Segundo, 228 SCRA 691; People v. Lo-ar, G.R. No. 118935, 6 October 1997; People v. Sagun, G.R. No. 110554, 19 February 1999; People v. de Guzman, G.R. No. 132071, 16 October 2000.
[10] Records, p. 343.
[11] TSN, 21 May 1999, pp. 382-390.
[12] Rollo, pp. 140-141.
[13] People v. Hernandez, G.R. No. 139697, 15 June 2004, 432 SCRA 104, 121-122; People v. de Jesus, G.R. No. 134815, 27 May 2004, 429 SCRA 384, 403.
[14] People v. Cabbab, Jr., G.R. No. 173479, 12 July 2007, 527 SCRA 589, 604.
[15] People v. Flores, Jr., 442 Phil. 561, 569 (2002).
[16] People v. Buban, G.R. No. 170471, 11 May 2007, 523 SCRA 118, 134.
[17] Mendoza v. People, G.R. No. 173551, 4 October 2007, 534 SCRA 668, 702.
[18] People v. Lara, G.R. No. 171449, 23 October 2006, 505 SCRA 137, 157-158.
[19] People v. Dulay, G.R. No. 174775, 11 October 2007, 535 SCRA 656, 664.
[20] People v. Orilla, G.R. Nos. 148939-40, 13 February 2004, 422 SCRA 620, 645-646.
[21] Llave v. People, G.R. No. 166040, 26 April 2006, 488 SCRA 376, 404.
[22] Records, p. 329.
[23] 403 Phil. 819, 828-829 (2001).
[24] People v. Villarba, 398 Phil. 382, 399 (2000).
[25] Id.
[26] Records, p. 23.
[27] G.R. No. 139069, 17 June 2004, 432 SCRA 394, 413.
On 10 March 1999, an Amended Information was filed against appellant Jabiniao before the RTC of Cagayan de Oro City, charging him with the crime of Robbery with Homicide, penalized under Article 294 in relation to Article 14 of the Revised Penal Code, as amended by Republic Act No. 7659, allegedly committed as follows:
That on August 27, 1998 at about 1:00 o'clock dawn at Cugman, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with one another being both armed with handguns and with intent to gain and after entering without permission into the dwelling of the offended party Maria Divina Pasilang where she was sleeping together with her husband Ruben Pasilang and their minor children and by means of force, threat, intimidation and violence with the use of their handguns by pointing the same to the offended party and her husband who were awakened after they were kicked by co-accused Toribio Jabiniao, Jr., the accused demanded for their money and after finding it the accused did then and there willfully, unlawfully and feloniously, with intent to gain, take, rob and carry away the money of the offended party and her husband amounting to more or less P2,000.00 to their damage and prejudice which the couple intended to use for the hospitalization of their son who was then sick with dengue fever and thereafter before fleeing with the money, the herein accused, in pursuance of their conspiracy did then and there willfully, unlawfully and feloniously, with evident premeditation, taking advantage of their superior number and strength and with intent to kill, by reason and on the occasion of the robbery, treacherously attack the victim Ruben Pasilang by shooting him with the use of their guns thereby inflicting a mortal gunshot wound on the victim which cause[d] his untimely death, to the great damage and prejudice of the offended party, the victim and his heirs.Appellant Jabiniao was arraigned on 12 March 1999, wherein he pleaded "Not Guilty" to the charge. The other accused remains unidentified. Trial on the merits ensued.
That the commission of the crime was also attended by the aggravating circumstance of nightime purposely sought by the accused and by committing it inside the dwelling of the victim.
The killing of Ruben Pasilang is committed with the use of an unlicensed firearm.
Contrary to Article 294 in conjunction with Article 14 of the Revised Penal Code as amended by R.A. No. 7659.[2]
The prosecution presented as its witnesses Maria Divina Pasilang, Ireneo Haclad, SPO1 Bladimer Fabre Agbalog, SPO4 Hilario Balensola, PO1 Fernando Edoria, Dr. Efren Celeste, Dawn Florendo, Atty. Eleuteria Algodon and Rolando Jabiniao.
Private complainant Maria Divina Pasilang testified that at around 1:00 a.m. of 27 August 1998, she and her husband, the deceased Ruben Pasilang, were sleeping in their house in Cugman, Cagayan de Oro City. They were awakened when Maria Divina felt someone kick her thighs. When she opened her eyes, she saw appellant Jabiniao, who was short and muscular, wearing a pair of short pants but without any shirt on, with a holster on his shoulder and a bonnet or ski mask on his face. He had a masked companion who stayed at the door outside their house, acting as a lookout. Appellant Jabiniao pointed his gun at Maria Divina and Ruben and demanded money from them. They were not able to say a word as they were both trembling in fear. Appellant Jabiniao ransacked the drawer for money and other belongings and took P2,000.00 and Maria Divina's shoulder bag. Appellant Jabiniao removed his mask, revealing his face.
Appellant Jabiniao approached Maria Divina, raised her duster and stroked her thighs. She mercifully begged not to be touched in exchange for all their belongings. Ruben likewise pleaded and told appellant Jabiniao that he could take all their things. Appellant Jabiniao, however, continued stroking Maria Divina's thigh. He then stood up and cut the wire of an electric fan which he used to tie Ruben's feet. Appellant Jabiniao then proceeded to tie Ruben's hands with the strap of Maria Divina's bag, but Ruben resisted and was able to free his hands from appellant Jabiniao's hold. Appellant Jabiniao ran towards the door. Ruben crawled and knelt towards the door and closed it. A few seconds later, gunshots were fired from the outside which pierced through the door, hitting the chest of Ruben. Maria Divina heard appellant Jabiniao and his masked companion pass through the gate and flee the area. Maria Divina went to Ruben and embraced him. Ruben said: "Mards, I am going to die because of the wound." She replied, "Do not succumb to the pain because you still have children who need your care." Maria Divina shouted for help. Her nearest neighbor, Nang Emie, answered: "We are afraid, Day, to help because of the gunfire." Ruben died in Maria Divina's arms.[3]
Appellant Jabiniao was arrested on 14 September 1998. The following day, on 15 September 1998, policemen asked Maria Divina to identify her assailant. Maria Divina immediately identified appellant Jabiniao.
Maria Divina also testified that she misses her husband and was worried about the future of her children. Ruben was earning P200.00 a day as a foreman of a building contractor. She spent P500.00 every night for ten days as wake expenses, P6,000.00 for the 9th day rites, and P1,000.00 for the 40th day rites. She also paid P1,800.00 for the coffin and P3,000.00 for the tomb.[4]
Barangay Tanod Ireneo Haclad testified that on 14 September 1998, he accompanied the police officers who served the warrant of arrest on appellant. At around 3 p.m. of the same day, upon seeing the policemen, appellant tried to pull his gun but was deterred when one of the policemen fired two warning shots and ordered him to stop and drop his gun. A policeman then tackled and handcuffed him. The policemen retrieved from appellant a black bonnet or ski mask, a holster and a "paltik" .38 caliber gun with five bullets and one empty shell. SPO1 Bladimer Fabre Agbalog corroborated this account.
SPO4 Hilario Balensola Rosilla, Jr., senior police officer of the Firearms and Explosives Unit of the Philippine National Police, testified to his 9 March 1999 Certification that appellant was not among those included in the list of registered firearm holders, nor was he issued a permit to carry a firearm outside of residence.
PO1 Fernando Edoria, who was assigned to the Warrant and Subpoena Section and the Central Record Section of the PNP, Cagayan de Oro City, testified that his office issued a Certification dated 20 May 1999 stating that appellant Jabiniao has three criminal records, as follows: (1) Robbery with Homicide [CC Nr 98-953]; (2) Murder [CC Nr 96-374]; and (3) Illegal Possession of Firearms [CC Nr 96-10-40-96].
Dr. Efren Celeste, Medical Officer IV of the City Health Department of Cagayan de Oro City, issued a Death Certificate dated 1 September 1998 stating that Ruben's causes of death are the following:
Social Security System employee Dawn Florendo testified that Maria Divina filed a funeral claim in said agency. Public Attorney's Office Officer-in-Charge Atty. Eleuteria Algodon testified that she subscribed to appellant Jabiniao's Counter-Affidavit wherein the latter declared that he owned the bonnet taken by the police officers, but used the same during harvest time to avoid scabies and for the cold weather at night.
CAUSES OF DEATH Immediate Cause: a. Cardio Respiratory Arrest Antecedent Cause: b. Hypovolemic Shock Underlying Cause: c. Gunshot wound (L) chest[5]
Appellant Jabiniao's brother, Rolando Jabiniao, testified that appellant Jabiniao was not in his house on 26 August 1998 or within the vicinity of Mintugsok, Cugman. He did not know where appellant Jabiniao was when the crime was committed.
The defense, on the other hand, presented as its witnesses appellant Jabiniao himself, Leonardo Gacang and Felix Ramos.
Appellant Jabiniao, a hollow block maker and a resident of Dao, Gusa, Cagayan de Oro City, denied any involvement or participation in the crime. He claimed that on 26 August 1998, he was in the house of his mother at Mintugsok, Cugman, which is only five meters away from the house of his brother, Rolando Jabiniao. He was sick at that time and was attended to by his mother. The next day, on 27 August 1998, he and a certain Eusebio Riyas removed corn from the kernel at around 1:00 a.m. On 14 September 1998, while he was again removing corn from the kernel, he heard three warning gunshots and was surprised to be arrested by the police in the presence of his brother, Rolando Jabiniao. Appellant Jabiniao claims that complainant Maria Divina was just coached by the police officers when the latter pointed to him as the assailant. This time around, he denied possession of a bonnet and a firearm.
Leonardo Gacang, a tuba gatherer, farmer and hilot, claims that on 26 August 1998, Toribio Jabiniao, Sr., the father of appellant Jabiniao, fetched and brought him to Mintugsok, Cugman, to heal appellant Jabiniao, who was having stomachache. He observed that appellant Jabiniao could not stand because of his illness. Gacang administered hilot on appellant Jabiniao and gave the latter a concoction extracted from boiled young leaves of guava, santol and kaimito for him to drink. He left the house at around 4:00 p.m.
Felix Ramos, former neighbor of appellant Jabiniao, testified that on 26 August 1998, at around 9:00 a.m., he went to his farm in Mintugsok, Cugman. That afternoon, he went to the nearby house of Rolando Jabiniao to ask for water. When he was inside, he saw appellant lying flat on the floor, pressing a pillow to his stomach. A few minutes later, Toribio Jabiniao, Sr. arrived. Felix left the house when Gacang started to administer hilot to appellant Jabiniao.
On 19 April 2000, the trial court found appellant Jabiniao guilty beyond reasonable doubt of the crime of Robbery with Homicide and imposed upon him the death penalty:
IN LIGHT OF THE FOREGOING consideration[s], judgment is hereby rendered finding the accused Toribio Jabiniao, Jr. guilty beyond reasonable doubt as charged of the crime of Robbery with Homicide as principal by direct participation and in conspiracy with John Doe with the following aggravating circumstances of evident premeditation and taking advantage of superior strength with the following aggravating circumstances:The trial court found the testimonies of the prosecution witnesses credible, particularly the clear and positive identification of appellant Jabiniao by Maria Divina. In so doing, the trial court considered the account of Maria Divina of the open electric light, the removal of the bonnet, and the "mashing" of her thighs by appellant Jabiniao to be credible and trustworthy. The trial court likewise rejected Jabiniao's alibi that he was ill and was in his brother Rolando's house. Said defense was belied by Rolando himself who testified otherwise.
a.) use of unlicensed firearm;
b.) the crime be committed in the dwelling of the victims;
c.) night time purposely sought;
d.) the crime be committed with treachery;
and sentences the accused Toribio Jabiniao, Jr. to death by lethal injection and to indemnify the offended party the sum of Seventy-Five Thousand Pesos (P75,000.00) and to pay moral damages to the offended party, the sum of Seventy-Five Thousand Pesos (P75,000.00) and to pay actual damages of Two Thousand Pesos (P2,000.00) and Twelve Thousand Pesos for funeral expenses and temperate damages for wake and 9 days prayer in the sum of Six Thousand Pesos (P6,000.00) and to pay the cost.
The accused is however entitled to be credited in the service of his sentence consisting of deprivation of his liberty with the full time during which he has undergone preventive imprisonment.[6]
Appellant Jabiniao appealed the Decision of the trial court to the Court of Appeals. On 19 July 2006, the Court of Appeals affirmed with modification the findings of the trial court, to wit:
WHEREFORE, premises considered, the assailed Decision dated April 19, 2000 of the Regional Trial Court, Branch 25, Cagayan de Oro City is hereby AFFIRMED with MODIFICATION to the effect that appellant is found guilty beyond reasonable doubt of the crime of Robbery with Homicide and is sentenced to suffer the imprisonment of reclusion perpetua in lieu of the death penalty pursuant to Section 2(a) of R.A. 9346. Appellant is hereby directed to pay the heirs of the victim P75,000.00 as civil indemnity, P50,000.00 as moral damages, P14,000.00 as actual damages, P25,000.00 as exemplary damages and P6,000.00 as temperate damages.[7]Appellant Jabiniao filed the present appeal, submitting the same Brief and Assignment of Errors it had presented before the Court of Appeals. His Assignment of Errors reads:
Whether the guilt of appellant Jabiniao was proved beyond reasonable doubtI
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.
II
GRANTING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT A QUO GRAVELY ERRED IN CONVICTING HIM FOR THE COMPLEX CRIME OF ROBBERY WITH HOMICIDE SINCE THE CRIMES COMMITTED ARE TWO SEPARATE CRIMES OF SIMPLE ROBBERY AND HOMICIDE WHICH WILL ENTITLE HIM TO THE IMPOSITION OF TWO DIVISIBLE PENALTIES FOR EACH OF THE TWO FELONIES CORRESPONDINGLY.[8]
In asserting that his guilt has not been proven beyond reasonable doubt, appellant Jabiniao claims the contention of Maria Divina that the perpetrator removed his mask when he was searching the cabinet of the victim was tainted with falsehood, arguing that a robber who intended to hide his face would not conveniently remove his mask to reveal his identity. Appellant Jabiniao likewise points to the portion in Maria Divina's testimony wherein the robber panicked and ran away when Ruben was able to untie his hands. Appellant Jabiniao argues that this is incredible, as Ruben's feet had still been tied with a cord at that time, while the assailant was armed with a gun. Appellant Jabiniao thus offers his theory that he was pinned down by police officers for already facing several other criminal charges.
We are not convinced.
Unable to find inconsistencies in the prosecution's account of the alleged crime, appellant Jabiniao desperately seeks the indulgence of this Court by invoking what it claims to be natural reactions to a given situation. He claims that it is incredible for an assailant who had purposely concealed his identity with a bonnet or ski mask to remove the same while still in the presence of the victims. He claims that it is incredible for an assailant with a gun to panic when his nemesis was tied at the feet.
To a certain extent, a logical and methodical assailant having nerves of steel would probably not do what the alleged assailant in the case at bar did. But while we can agree that an assailant who had purposely concealed his identity with a ski mask would probably not remove the same while still in the presence of the victims, and that an assailant with a gun would probably not panic while his nemesis was tied at the feet, we cannot say that an account claiming the contrary is incredible.
There is no reason why the oft-quoted axiom - that there is no standard form of behavior when one is confronted with a shocking incident[9] - should not apply to everyone present in such incident. Furthermore, a reading of Maria Divina's account shows that she and Ruben appeared to be compliant to all the wishes of the assailant at the start. At the time the assailant allegedly removed his ski mask, said assailant appeared to be in complete control and had absolutely no reason to panic. Ruben even told the assailant to take everything he can.[10] The assailant could have been lured to a false sense of security which allowed him to remove an uncomfortable piece of clothing. On the other hand, Ruben's attempt to untie himself from Maria Divina's bag's strap was the very first resistance offered by the victims. Ruben's actually being able to untie himself would certainly be a reason for the assailant to panic after he had thought he was in complete control. As stated by the Court of Appeals, Maria Divina's testimony was clear and straightforward, and survived a grueling cross-examination. Thus, on cross, Maria Divina testified:
Maria Divina's testimony was clear, direct, and was without inconsistencies. Appellant Jabiniao, however, countered this positive identification with denial and alibi. As it is, denial and alibi are already inherently very weak in the face of a positive identification by a credible witness. Inconsistency in the defense's evidence and credible contrary evidence presented by the prosecution sealed appellant Jabiniao's fate. We quote with approval the following reasoning of the Court of Appeals:
CROSS EXAMINATION: ATTY. GIOVANNI NAVARRO:
Q: A: Q: A: x x x x Q: A: Q: A: Q: A: x x x x Q: A: Q: A: Q: A:
Herein appellant declared that he was staying at the house of his mother, located at the same barangay with that of private complainant's house, removing corn from its kernel when the crime was committed. It was not, therefore, physically impossible for him to be at the scene of the crime considering the accessibility of his place to that of the victims. It also bears stressing that his testimony was inconsistent with that of his own witness, Felix Ramos, who testified that appellant was allegedly not in his mother's house but in the house of his brother. Appellant's brother, however, categorically declared that appellant was not in his house at that time nor within the vicinity of Mintugsok, Cugman. Furthermore, appellant, at another instance, posited that he was sick at that time. This Court wonders how a sick person could be physically fit enough to stay awake at up to 1:00 o'clock in the morning and remove corn from its kernel. It is rather contrary to human behavior and experience since the natural tendency of a sick person is to rest. Indeed, the same is but a flimsy excuse which deserves no merit. For evidence to be believed, it must not only proceed from the mouth of a credible witness, it must be credible in itself.Whether the crime was that of a complex crime of Robbery with Homicide or two separate crimes of (1) Simple Robbery and (2) Homicide.
We find no compelling reason to overturn the factual findings of the court a quo. Findings of the trial court are accorded not only the highest respect, but also finality, unless some weighty circumstances have been ignored or misunderstood which could alter the result and affect the judgment to be rendered. The same is not present in the case before Us.[12]
According to appellant Jabiniao, assuming arguendo that he was the real perpetrator, his conviction for the special complex crime of Robbery with Homicide is erroneous. He claims that since he had already run away from the house of the victim when he fired the gun and accidentally hit the victim, the robbery had already been accomplished when the killing occurred.
We disagree.
The crime of Robbery with Homicide is punished under Article 294 of the Revised Penal Code, which provides, in part:
Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it is committed to (a) facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to eliminate witnesses to the commission of the crime.[13] In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery with Homicide.[14]
1. The penalty of reclusion perpetua to death when by reason or on occasion of the robbery, the crime of homicide shall have been committed or when the robbery shall have been accompanied by rape or intentional mutilation or arson.
In the case at bar, appellant Jabiniao demanded money from Maria Divina and Ruben from the very start, plainly manifesting his and his companion's original intent to commit robbery. It was only after Ruben freed his hands when appellant Jabiniao panicked, ran outside the door and fired gunshots from the outside. Clearly, appellant Jabiniao fired the shots in order to facilitate his escape and eliminate his victims who could become witnesses against him and his companion.
We agree with both lower courts that the aggravating circumstances of (a) use of unlicensed firearm; (b) dwelling; and (c) treachery, which were alleged in the information, were established. With the presence of these aggravating circumstances, the penalty imposed should be the maximum, which is death.
However, in view of the enactment of Republic Act No. 9346 or the Act Prohibiting the Imposition of Death Penalty on 24 June 2006, the penalty thereat that should be meted must be reduced from death to reclusion perpetua without eligibility for parole.
Whether courts a quo correctly ruled on the civil liabilities of appellant Jabiniao.
It is settled that in a criminal case, an appeal throws the whole case open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of the assignment of errors or not.[15]
As to damages, when death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest in proper cases.[16]
The amount of P75,000.00 for civil indemnity awarded by the trial court as affirmed by the Court of Appeals, is sustained. The award for civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the commission of the crime.[17] The amount of P75,000.00 as civil indemnity is awarded only if the crime is qualified by circumstances which warrant the imposition of the death penalty.[18] Though the penalty imposed on appellant was reduced to reclusion perpetua, the civil indemnity to be awarded remains at P75,000.00.
The Court of Appeals however modified the awards for moral damages and exemplary damages. The Court of Appeals reduced the trial court's award of moral damages from P75,000.00 to P50,000.00. We agree with this change, pursuant to current jurisprudence.[19] As held by the Court of Appeals, moral damages are awarded in cases of violent deaths even in the absence of proof of mental and emotional suffering of the victim's heirs, because the violent and sudden death of a loved one invariably and necessarily brings about emotional pain and anguish on the part of the victim's family.[20]
We also agree with the award of exemplary damages in the amount of P25,000.00. Exemplary damages may be imposed when the crime is committed with one or more aggravating circumstances.[21] As held above, appellant Jabiniao's crime was aggravated by (1) the use of an unlicensed firearm; (2) commission of the crime in the dwelling of the victims; and (3) treachery.
The Court of Appeals, however, should have added an award for loss of earning capacity. Maria Divina testified that Ruben was earning P200.00 a day prior to his death.[22] While Maria Divina failed to substantiate this amount, we held in the similar case of People v. Laut[23] that:
As to the award of damages for loss of earning capacity, Erlinda testified that her husband Tomas was earning P600.00 a week prior to his death. She however failed to produce evidence to substantiate her claim. Nonetheless, Art. 2206 of the Civil Code provides, "the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter x x x unless the deceased on account of permanent disability not caused by the defendant had no earning capacity at the time of his death." In the present case, as there is no indication that the deceased had no earning capacity at the time of his death due to a permanent physical disability, we are inclined to give credit to Erlinda's testimony. Based on her computation, Tomas was earning an annual income of P28,800.00 counted at the rate of P600.00 a week for forty-eight (48) weeks. To this amount would be deducted his necessary and incidental expenses estimated at fifty percent (50%), leaving a balance of P14,400.00. His net annual income would then be multiplied by his life expectancy using the following formula: 2/3 x 80 - 40 (age of the victim at time of death). Tomas can therefore be said to have a life expectancy of twenty-six (26) years. All taken, an award of P374,400.00 for loss of earning capacity is just and proper.The daily income of P200.00 is equivalent to a gross annual income P48,000.00[24] The formula[25] for unearned income is as follows:
Life expectancy x [Gross Annual Income (G.A.I.) less Living expenses (50% G.A.I.)]Thus, the unearned income of Ruben, who was 29 years old[26] at the time of his death, is computed as follows:
where life expectancy = 2/3 x (80 - age of the deceased )
As to the P2,000.00 taken by appellant, the latter is ordered to return the same by way of restitution. As regards the funeral and burial expenses, the trial court found that the prosecution was able to substantiate only the amount of P12,000.00. In People v. Garin, we had this to say:
Unearned income = 2/3 (80-29)(P48,000.00-P24,000.00) = 2/3 (51)(P24,000.00) = P816,000.00
In support of the claim for actual damages, the victim's mother testified that she spent a total [amount of] P31,800.00 for the funeral service and other expenses during the wake. To justify an award of actual damages, it is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss. Of the expenses allegedly incurred, the only receipt presented by the prosecution was for the payment made to St. Matthew Funeral Homes in the amount of P12,500.In light of our ruling in Garin, in lieu of actual damages for funeral and burial expenses, we award the amount of P25,000 as temperate damages.
However, in the case of People v. Dela Cruz, it was held that when actual damages proven by receipts during the trial amount[s] to less than P25,000, as in the present case, the award of temperate damages for P25,000 is justified in lieu of actual damages for a lesser amount. This Court ratiocinated that it was anomalous and unfair that the heirs of the victim who tried but succeeded in proving actual damages amounting to less than P25,000 would be in a worse situation than those who might have presented no receipts at all but would be entitled to P25,000 temperate damages.[27]
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals dated 19 July 2006 in CA-G.R. CR-HC No. 00334-MIN is AFFIRMED with MODIFICATION. Appellant Toribio Jabiniao, Jr., is found GUILTY of the crime of Robbery with Homicide as defined in Article 294 of the Revised Penal Code, as amended. The proper imposable penalty would have been death. However, pursuant to Republic Act No. 9346, appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole. Appellant is ordered to pay the heirs of Ruben Pasilang the amounts of P75,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as exemplary damages; P25,000.00 as temperate damages; P816,000.00 as indemnity for loss of earning capacity; and P2,000.00 as restitution for the amount taken from the victim. No costs.
SO ORDERED.
Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.
[1] Penned by Associate Justice Ramon R. Garcia with Associate Justices Romulo V. Borja and Antonio L. Villamor, concurring. Rollo, pp. 4-26.
[2] Records, pp. 51-52.
[3] CA rollo, p. 23.
[4] Id. at 24.
[5] Records, p. 23.
[6] Id. at 493.
[7] CA rollo, p. 147.
[8] Id. at 77.
[9] People v. Segundo, 228 SCRA 691; People v. Lo-ar, G.R. No. 118935, 6 October 1997; People v. Sagun, G.R. No. 110554, 19 February 1999; People v. de Guzman, G.R. No. 132071, 16 October 2000.
[10] Records, p. 343.
[11] TSN, 21 May 1999, pp. 382-390.
[12] Rollo, pp. 140-141.
[13] People v. Hernandez, G.R. No. 139697, 15 June 2004, 432 SCRA 104, 121-122; People v. de Jesus, G.R. No. 134815, 27 May 2004, 429 SCRA 384, 403.
[14] People v. Cabbab, Jr., G.R. No. 173479, 12 July 2007, 527 SCRA 589, 604.
[15] People v. Flores, Jr., 442 Phil. 561, 569 (2002).
[16] People v. Buban, G.R. No. 170471, 11 May 2007, 523 SCRA 118, 134.
[17] Mendoza v. People, G.R. No. 173551, 4 October 2007, 534 SCRA 668, 702.
[18] People v. Lara, G.R. No. 171449, 23 October 2006, 505 SCRA 137, 157-158.
[19] People v. Dulay, G.R. No. 174775, 11 October 2007, 535 SCRA 656, 664.
[20] People v. Orilla, G.R. Nos. 148939-40, 13 February 2004, 422 SCRA 620, 645-646.
[21] Llave v. People, G.R. No. 166040, 26 April 2006, 488 SCRA 376, 404.
[22] Records, p. 329.
[23] 403 Phil. 819, 828-829 (2001).
[24] People v. Villarba, 398 Phil. 382, 399 (2000).
[25] Id.
[26] Records, p. 23.
[27] G.R. No. 139069, 17 June 2004, 432 SCRA 394, 413.