Head Injury

HUMAN BODY EXAMINATION
1. HEAD INJURY
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAN AVE y TABOBO, accused-appellant.
DECISION
Puno, J.:
The appellant, DAN AVE, was charged with the crimes of Frustrated Murder and Murder before the Regional Trial Court of Urdaneta,
Pangasinan.
The Information in Criminal Case No. U-9168, for frustrated murder, reads:[1]
That on or about August 24, 1996, in the evening at Brgy. Camantiles, Municipality of Urdaneta, Province of Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused armed with a long firearm with intent to kill, treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously shoot Atty. Napoleon Valenzuela, inflicting upon him a gunshot
wound, the accused having thus performed all the acts of execution which would have produce(d) the crime of Murder as a
consequence but, which nevertheless, did not produce it by reason of causes independent of the will of the accused that is, due to the
timely and able medical assistance rendered to the said Atty. Napoleon Valenzuela which prevented his death, to his damage and
prejudice.
CONTRARY to Art. 248, in relation to Arts. 6 and 50 of the Revised Penal Code.
The Information in Criminal Case No. U-9032, for murder, reads:[2]
That on or about the 24th day of August, 1996, at barangay Camantiles, municipality of Urdaneta, Province of Pangasinan, and within
the jurisdiction of this Honorable Court, the said accused with intent to kill and by means of treachery and evident premeditation, did
then and there willfully, unlawfully and feloniously attack and shoot one Pedro Valenzuela, Jr. y Castisima, with the use of a long
firearm, hitting and injuring the head of said victim, and which injuries being fatal, caused his death, to the damage and prejudice of his
heirs.
CONTRARY to Art. 248 of the Revised Penal Code.
The appellant was also charged with Illegal Possession of Firearms, docketed as Criminal Case No. U-9153. The three (3) cases were
later consolidated.[3]
The appellant went into hiding for almost two (2) years and his cases had to be archived.[4] On August 18, 1998, he was finally arrested
and later pled not guilty to all the charges. The three (3) cases were tried jointly.[5]
The prosecution established that in the evening of August 24, 1996, Pedro Valenzuela, Jr., Atty. Napoleon Valenzuela, Isidro (Benito)
Ave, Calixto Valenzuela, Leopoldo Valenzuela, and Rogelio Gacad had a drinking spree in the vicinity of the house of Pedro
Valenzuela, Jr. in Barangay Camantiles, Urdaneta City, Pangasinan.[6] A rectangular bamboo bed served as their makeshift table. The
place was well lighted by a 100-watt Philipps bulb placed just above them and by the lights coming from the house of Pedro. During the
revelry, Pedro was seated beside his cousin, Atty. Valenzuela.[7]
At about 9:00 p.m., Rogelio Gacad found the need to answer the call of nature. With his back facing his companions, he relieved
himself on a spot about five (5) or six (6) meters away from them.[8]
Out of nowhere, the appellant appeared. Unnoticed by the group, the appellant stood behind Pedro and fired at him with a long firearm
from a distance of about three (3) meters. Pedro was hit at the back of his head and he slumped on the makeshift table. Atty.
Valenzuela stood up and checked on Pedro. However, the appellant shot Atty. Valenzuela, the bullet hitting his stomach. The group
scampered to safety.[9]
Leopoldo, brother of Pedro, helped Atty. Valenzuela hide inside their house. They heard another gunshot. Thereafter, the appellant left
the crime scene. Three (3) minutes later, Leopoldo and his companions got out of the house and saw Pedro lying in a pool of
blood. Atty. Valenzuela was rushed to the hospital while Pedro was taken to the morgue.[10]
Atty. Valenzuela survived the attack due to the immediate medical treatment he received from Dr. Candido San Juan of the Urdaneta
Sacred Heart Hospital (USHH). The extent of the injury inflicted on Atty. Valenzuela and the operation that he underwent on account of
such gunshot wound, were as follows:[11]
xxxxxxxxx
DIAGNOSIS:
= Gunshot wound, RUQ, Abdomen, Penetrating, Lacerating (R) Lobe, Liver, Perforating ascending colon, T&T slug lodging at the
retroperitoneal space, pelvic area (R) no point of exit
OPERATION:
= Explor-lap, Hepatorrhapy, Colorrhapy and Exteriorization of Ileocecal portion,
= Evacuation of Blood clots and peritoneal lavage and repair of Gunshot wound.
xxxxxxxxx
Dr. San Juan explained that the bullets point of entry was in the abdomen. The slug entered the abdominal cavity and hit the right lobe
of the liver and the ascending portion of the large intestine or colon. The slug lodged near the pelvic area, at the back, of Atty.
Valenzuela. He was confined at USHH for seven (7) days, from August 24-31, 1996, and was later transferred to a hospital in Quezon
City.
Dr. San Juan could not indicate the healing period of Atty. Valenzuela because he had to undergo another operation in the ileocecal
portion (the junction between the small and large intestines). He opined that Atty. Valenzuela would have died if not for the immediate
medical assistance he got at the hospital. Considering the location of the gunshot wound, Dr. San Juan said that the assailant could
have been facing Atty. Valenzuela, or could have been standing beside him during the attack.[12]
During his confinement at the Urdaneta Sacred Heart Hospital, Atty. Valenzuela incurred medical expenses. The fifty-five (55) receipts
for the expenses he incurred were marked as Exhs. N, N-1 to N-54. He was subsequently transferred to Gen. Malvar Hospital in
Commonwealth Avenue, Quezon City, where he received further medical care for his injury. The sixty (60) receipts covering the
expenses he incurred in the said hospital were marked as Exh. O, Exh. O-1 to Exh. O-59. His doctors fee (Exh. P) amounted
to P16,251.80.[13]
Atty. Valenzuela is an associate lawyer at Maniacop Law Office in Quezon City. From August 1996 to February 1997, he failed to
practice the law profession due to his injury. He claimed that his lost income for the said period amounted to P150,000.00. He works on
a salary basis, but also receives appearance fees. He settled his hospital bills using his familys savings in the bank. He suffered
sleepless nights after the shooting incident because he almost died. He could not think of any reason behind the shooting incident
because the accused is his distant relative.[14]
Pedro Valenzuela, Jr. was autopsied by Dr. Ramon B. Gonzales, Jr., Rural Health Physician of the Municipal Health Office in Urdaneta,
Pangasinan. The Autopsy Report[15] reads:
xxxxxxxxx
SIGNIFICANT EXTERNAL FINDINGS:

Ecchymosis both upper eyelids
Gunshot wound head, left parietal region 5mm. x 5mm. x 6 cm. deep directed upwards.
SIGNIFICANT INTERNAL FINDINGS:
Fracture, circular left parietal bone.
Slug recovered at right frontal area between brain and right frontal bone.
Cerebral hemorrhage and injury, left parietal lobe to right frontal lobe brain.
CAUSE OF DEATH:
Cerebral Hemorrhage and Injury, left parietal lobe to right frontal lobe, brain due to Gunshot Wound Head.
The victim, 54, was a former member of the Philippine Navy. His wife, Erlinda Valenzuela, claimed that Pedro used to
receive P6,258.00 monthly from the finance center at Camp Aguinaldo and P3,000.00 monthly from PVAO, as his old age pension. In
addition, he earned P180.00 daily as a tricycle driver.[16]
Erlinda made a list[17] of the expenses she incurred during the wake and the internment of Pedro. She allegedly spent the following
amounts: P91,341.50 for eighteen (18) days because several members of the Philippine Navy attended her husbands
wake,[18] P15,000.00 for the nine-day novena, P20,000.00, for the ninth month death anniversary, P25,000.00 for funeral
services,[19] and P6,121.75 for the tomb, tomb stone and shade.
Erlinda did not present any receipts for the expenses she incurred, except for the funeral services provided by JC Mortuarium. She also
admitted that the pensions her husband used to receive were transmitted to her and her children upon his death.[20]
To prove the charge of illegal possession of firearm, the prosecution presented SPO4 Roberto Manuel, the Assistant Firearms Chief of
the Firearms and Explosives Office, Pangasinan Police Provincial Office, Lingayen, Pangasinan.[21] He testified that their office
maintains the records of licensed firearm holders who are residents of Pangasinan and processes applications for firearm licenses and
releases firearm licenses. As per the records forwarded to their office by Camp Crame, the appellant is not a licensed firearm holder.[22]
Another witness, SPO1 Juanito Pedral of the Firearms & Explosives PNCO of Police Regional Office I, San Fernando City, La Union,
testified that the appellant is not included in the list of firearm holders in Region I.[23]
The appellant was the sole witness for the defense. He gave a different version of the shooting incident.
In the evening of August 24, 1996, the appellant was in his house in Barangay Camantiles, Urdaneta City. At 7:30 p.m., his 19-year old
cousin, Richard Geron, came and told him that his mother, Marta, would talk to him concerning the spraying of their mango trees.[24] He
went to the house of his Aunt Marta and along the way, walked past the house of Pedro Valenzuela, Jr. Someone from Pedros group
saw him and whistled at him. He ignored them. When he reached his aunts house, they discussed how they would spray the mango
trees. He headed back home at 8:30 p.m.[25]
On his way home, the appellant again passed by the place where Pedros group had been drinking. Leopoldo Valenzuela confronted
him and said, We were calling for you when you passed by, but you did not even mind us. The appellant apologized and explained that
he did not notice them. Leopoldo asked him to join them. At first, the appellant refused but later relented in order not to slight
Leopoldo.[26]
Calixto was also agitated because appellant snubbed them earlier that evening. Calixto allegedly confronted the appellant for refusing
to drink with them and for acting like he was mad at them. Calixto gave him a drink. The appellant accepted it and again apologized but
that did not placate Calixto. Calixto still badmouthed him and charged him of being arrogant.Thereafter, Calixto reached out for a long
firearm and aimed it at him. They grappled for the firearm. During the struggle, the trigger accidentally went off. Calixto uttered, vulva of
your mother, get loose of the gun. The appellant was able to push Calixto away and ran to his house. He related the incident to his
mother.[27]
The appellant claimed he had no quarrel with Pedro. He also saw for the first time Atty. Valenzuela that fateful night. He claimed that
they owned the firearm.[28]
On November 10, 1998, the trial court granted the demurrer to evidence in the illegal possession of firearm case (Criminal Case No. U-
9153). Relying in People vs. Molina,[29] in relation to Republic Act No. 8294, the appellant was acquitted for illegal possession of
firearm.
On November 11, 1998, the trial court rendered a Joint Decision,[30] finding the appellant guilty of murder and frustrated murder. It
considered the use of an unlicensed firearm in the commission of the crime as an aggravating circumstance in the murder case and
meted the death penalty against the appellant. It appreciated no aggravating or mitigating circumstance in the frustrated murder
case. The dispositive portion of the trial courts decision reads:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds the accused, DAN AVE y TABOBO, alias Dan-Dan:
IN CRIMINAL CASE NO. U-9168:
GUILTY beyond reasonable doubt of the crime of FRUSTRATED MURDER and applying the Indeterminate Sentence Law, there being
no aggravating or mitigating circumstance, hereby sentences him to suffer the indeterminate penalty of EIGHT (8) YEARS and ONE (1)
DAY of prision mayor in its medium period, as MINIMUM to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
reclusion temporal in its medium period, as MAXIMUM; and to pay the offended party ATTY. NAPOLEON VALENZUELA in the amount
of P216,251.80 as actual damages; P150,000.00 as loss of income; and P1,000,000.00 as moral damages.
IN CRIMINAL CASE NO. U-9032:
GUILTY beyond reasonable doubt of the offense of MURDER defined and penalized under Republic Act No. 7659, otherwise known as
the Heinous Crime Law, the offense having been committed with the attendant special aggravating circumstance of the use of
unlicensed firearm in the commission of the crime (Republic Act 8294), hereby sentences him to the ultimuum suplicium of DEATH to
be executed pursuant to Republic Act No. 8177, known as the Lethal Injection Law, to pay the heirs of the victim, Pedro Valenzuela, in
the amount of P50,000.00 as indemnity; P157,463.35 as actual damages; and P500,000.00 as moral damages.
To pay costs.
In fin, it is said: Dura lex, sed lex, translated as: The law is harsh, but it is the law!
SO ORDERED.
Hence, this automatic review.
The Appellants Brief assigns the following errors:
First: THE TRIAL COURT (ERRED) IN GIVING CREDENCE TO THE TESTIMONY OF THE WITNESSES FOR THE PROSECUTION,
OVERLOOKED THE SIGNIFICANCE, SUBSTANCE AND INFLUENCE OF CONTRADICTORY EVIDENCE ON RECORD; and,
Second: THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIMES OF FRUSTRATED
MURDER AND MURDER, BASED ON THE PROSECUTIONS EVIDENCE AND NOT ON THE UNCONTROVERTED TESTIMONY OF
ACCUSED-APPELLANT.
We affirm the conviction with modifications.

The first error involves a calibration of the credibility of the prosecution witnesses. It is an established rule that when it comes to
credibility of witnesses, appellate courts generally do not overturn the findings of trial courts. The latter are in a best position to
ascertain and measure the sincerity and spontaneity of witnesses through their actual observation of the witnesses manner of
testifying, demeanor, and behavior in court.[31] In the cases at bar, the trial court was highly impressed by the credibility of the
prosecution witnesses, thus:[32]
Unfortunately for the accused, the Court finds the testimonies of the witnesses for the prosecution which are unequivocal, forthright and
replete with details, all of which were seals of self-authentication of their credibility and which convinced the Court to accord full faith
and credit to their version. The records are barren of any unworthy motive on their part to fabricate the serious charges against the
accused. (emphasis ours)
In contrast, it rejected the appellants defense of accidental shooting as a prevaricated concoction, melodramatically orchestrated. It
held:[33]
. If it is really true that while the accused was grappling with Calixto Valenzuela (for) said long firearm, why did he fail to describe or
relate how the victims sustained the fatal injuries? .
If the accused is innocent as a cherubim, why did he not report immediately to the barangay officials or to the police authorities of
Urdaneta City what really happened as per his version? Why did he sleep immediately? To join (M)orpheus in a sweet dreams (sic) of
ecstasy?
xxxxxxxxx
Why is it that the accused was only arrested on August 19, (sic) 1998 or two (2) years after the shooting incidents? He was found
nowhere after the incident indicating that he fled. He is a revenant.
xxxxxxxxx
Accuseds version in sum is unconvincing, flawed as it is by serious inconsistencies. Accused resort to the jaded apologia of denial and
accidental shooting hardly merits symphaty (sic).
We have carefully studied the records of these cases. We also find the testimonies of the prosecution witnesses to be forthright and
unequivocal. Their accounts of the shooting incident converged on material points. Atty. Valenzuela testified as follows:[34]
PROS. MATRO:
Q: Do you know personally this Dan-Dan Ave?
A: I do not know him personally but I saw him on that night of the shooting in question.
Q: If he is inside the courtroom, will you please point to him?
A: There, sir.
INTERPRETER:
Witness is pointing to a person seated on the bench and when asked his name, he gave his name as Dan-Dan Ave.
xxxxxxxxx
Q: You said you were shot by Dan-Dan Ave, did you see him shoot Pedro Valenzuela?
A: No, sir.
Q: So, why did you say earlier that Dan-Dan Ave shot Pedro Valenzuela?
A: Because when I heard the explosion, I looked at my cousin Pedro Valenzuela who made a gurgling sound and when I stood up and
looking (sic) at him I also heard another explosion and when I looked up, I saw a person, that man, holding a gun, pointing at me, sir.
Q: After that, what happened next?
A: I felt some kind of pain and sensation on my stomach and then I heard my cousin, Leopoldo Valenzuela, who told me that it was
Dan-Dan Ave who shot (us).
xxxxxxxxx
Q: Now, Mr. Witness, how far was this Dan-Dan Ave from you when you saw him holding a firearm and pointing at you?
A: I think three (3) meters away, sir.
Q: What were your relative positions with Pedro Valenzuela from Dan-Dan Ave at that time?
A: I was seated beside Pedro Valenzuela, sir.
Q: And where was Dan-Dan Ave when you saw him holding a gun aiming at you?
A: He was directly behind Pedro Valenzuela, sir.
Q: And how far was Pedro Valenzuela from him?
A: I think it was also three (3) meters away, sir.
Q: And how many explosions did you hear Mr. Witness?
A: Three (3) explosions because after I was shot, my cousin Leopoldo Valenzuela helped me and we went inside the house of Pedro
Valenzuela, sir.
COURT:
Q: How many explosions did you hear or not?
A: Three, because when we were inside the house of Pedro Valenzuela, the accused again fired another shot when I was inside the
house, sir.
Q: So one for Pedro Valenzuela, and one for you and another, when you were already inside the house?
A: Yes, your Honor.
PROS. MATRO:
Q: How far is the house of Pedro Valenzuela from the place where you were having the drinking?
A: Just two (2) meters away, just beside the house, sir.
xxxxxxxxx
Q: It was nine oclock in the evening when the incident took place. How were you able to recognize the person of the accused?
A: The place where we were drinking was lighted by a Philipps bulb, sir.
Leopoldo Valenzuela, a brother of the deceased victim, corroborated the testimony of Atty. Valenzuela, thus:[35]
PROSECUTOR MATRO:
Q: And at that particular time, 9:00 in the evening, do you recall if there was any unusual incident that happened?
A: There was, sir.
Q: What was that unusual incident you are referring to?
A: Somebody fired his gun, sir.
Q: What happened when somebody fired his gun?
A: Pedro Valenzuela was shot at the back of his head, sir.
Q: Did you see who shot him?
A: Yes, sir.
Q: Who shot him?
A: Dan Ave.
(The witness is pointing to a person seated on the bench inside the courtroom wearing stripe shirt and blue pants, who when asked his
name answered DAN AVE).
Q: How were you able to recognize the person of Dan Ave when it was 9:00 oclock in the evening.
A: It was bright because there was light, sir.
Q: Where was that light placed or attached?
A: It was near the house or just above us, sir.
Q: What kind of light was that?
A: It was a Philipps bulb, sir.
xxxxxxxxx
Q: Where was the accused when he shot the victim Pedro Valenzuela?
A: He was at the back of Pedro Valenzuela, sir.
Q: How far was he?
A: Around 3 meters, sir.
xxxxxxxxx
Q: How many times did Dan Ave shoot Pedro Valenzuela?
A: Once, sir.
xxxxxxxxx
Q: And after Pedro Valenzuela fell down, what happened next, if any?
A: Atty. Valenzuela stood up and he was about to assist Pedro Valenzuela and again there was another gunshot?
Q: Where did that gunshot emanate?
A: From Dan Ave, sir.
Q: And where was this shot directed?
A: To Atty. Valenzuela, sir.
xxxxxxxxx
Q: Where was Dan Ave in relation to Atty. Valenzuela when he fired at him?
A: He was at the back of Pedro Valenzuela and Atty. Valenzuela, sir.
Q: How many times did the accuse(d) fire at Atty. Valenzuela?
A: Only once, sir.
xxxxxxxxx
PROSECUTOR MATRO:
Q: before Dan Ave shot Pedro Valenzuela, did you notice his presence?
A: No, sir.
Q: Why not when you were supposed to be facing his direction?
A: We already noticed his presence when we heard his (sic) gunshot, sir.
Q: And what kind of firearm did Dan Ave used in shooting Pedro Valenzuela and Atty. Valenzuela?
A: It was a long firearm, like this, sir .
xxxxxxxxx
Q: After Atty. Valenzuela was shot, what did you do?
A: I assisted Atty. Valenzuela and we went inside the house of Pedro Valenzuela, sir.
So did Rogelio Gacad who testified as follows:[36]
ATTY. AOANAN: (CROSS-EXAMINATION)
xxxxxxxxx
Q: Now, it was when you were urinating that you heard the gunshot report, is that correct?
A: Yes, sir.
Q: And according to your sworn statement, you heard three consecutive shots, is that correct?
A: Yes, sir.
Q: Now, Mr. Witness, when you were urinating, were you facing East, West, North, or South?
A: West, sir.
xxxxxxxxx
COURT:
Q: What is the direction of the place where you were urinating in relation to the place where you were drinking? What direction were
you in relation to the place where you were drinking, that is the question of the counsel?
A: West side, sir.
ATTY. AOANAN:
Q: So, Mr. Witness, to be very clear, we suppose that the place where you were sitting is the place where you were urinating. Now,
where is the place where you were drinking?
A: At my back, sir, which is the east side.
COURT:
Q: How far were you?
A: Around five to six (5-6) meters, Your Honor.
ATTY. AOANAN:
Q: And what caught your attention to look where (sic) the gun reports?
A: Yes, sir, I looked when I heard the gun report and I saw Dan-Dan Ave.
COURT:
Q: Where was the accused when you saw him in relation to your companions?
A: East side of my companions, Your Honor.
xxxxxxxxx
COURTS QUESTIONING:
xxxxxxxxx
Q: While you were drinking for 2-1/2 hours, Dan-Dan Ave was not yet there?
A: Yes, Your Honor.
Q: When was the first time you saw him before the shooting?
A: When he shot Pepe (Pedro) Valenzuela, Your Honor.
Q: Do you mean to say that he just arrived at that particular time, nine oclock in the evening?
A: Yes, Your Honor.
Q: It is not very clear yet with the Court. Ave shot first who?
A: Pepe Valenzuela, Your Honor.
xxxxxxxxx
Q: Before you looked back, you said that you heard gun report. How many gun report did you hear before you looked back?
A: Two (2) gun reports, Your Honor.
Q: And then, the third gun report?
A: Yes, sir.
Q: How many times did he fire at Pepe Valenzuela?
A: Once, Your Honor.
Q: After firing at Pepe Valenzuela once, what else did the accused do?
A: He also fired his gun at Atty. Valenzuela who was hit on the right side of his stomach, Your Honor.
Q: How many times when he fired upon the lawyer?
A: Once, Your Honor.
Q: Then, what did he do?
A: he fired another shot, I am not exactly sure what direction, because I was already nervous, Your Honor.
The lack of ill motive on the part of the prosecution witnesses in testifying against the appellant makes their testimonies more
credible. We note that Atty. Valenzuela had not met the appellant prior to the shooting incident.[37] A resident of Quezon City, Atty.
Valenzuela was in Pangasinan that tragic day because his cousin Pedro had requested for his legal assistance concerning a theft case
filed against him.[38] He was clueless on why the appellant shot him and Pedro because they are the appellants distant relatives.[39] The
appellant himself confirmed that it was his first time to encounter Atty. Valenzuela that fateful night. He admitted he had no prior
misunderstanding with Atty. Valenzuela and Pedro.[40] As for Rogelio, there is also no iota of evidence that he has ill feelings toward the
appellant.
The blood relationship of Leopoldo and Atty. Valenzuela to Pedro would not make their testimonies unworthy of belief. On the contrary,
relationship could strengthen the witnesses credibility, for it is unnatural for an aggrieved relative to falsely accuse someone other than
the actual culprit.[41] Their natural interest in securing the conviction of the guilty would deter them from implicating a person other than
the true offender.[42]
We reject appellants claim that the trial court has overlooked contradictory evidence that would affect the credibility of the prosecution
witnesses. Essentially, these evidence, according to the appellant are:
(1) The prosecutions evidence on the sitting arrangements of the deceased victim and his companions during the shooting incident are
allegedly full of inconsistencies.
(2) Rogelio lied when he demonstrated at the trial how the appellant shot the victims since, at that time, Rogelio was urinating and he
turned around only after he had heard the two (2) successive gunshots. His testimony should be disregarded pursuant to the
doctrine falsus in uno falsus in omnibus.
(3) The trajectory of the bullets that hit Pedro and Atty. Valenzuela, per the medical findings of Dr. San Juan, are inconsistent with the
testimonies of Leopoldo and Rogelio on the position of the appellant vis-a-vis his victims, Pedro and Atty. Valenzuela. For instance,
Rogelio claimed that he (the appellant) was on the east side of the two (2) victims when he shot Pedro. However, the medical report of
Dr. Gonzales, Jr. showed that the fatal bullet entered the left portion of Pedros head. The appellant argues that if he were in the east
when he shot Pedro, the head injury would have been on the right side, not on the left side.
On the other hand, the trajectory of the bullet that hit Atty. Valenzuela belies the claim of Rogelio that he (appellant) was standing
directly behind Pedro during the shooting incident. The appellant claims that the medical records show that the bullet entered the right
side of Atty. Valenzuelas stomach and the slug lodged deeper into the right side. The appellant suggests that if Pedro were sitting at
the right side of Atty. Valenzuela while the appellant was directly behind Pedro, the bullet that hit Atty. Valenzuela would have
proceeded further to the left side, not the right side.
It is elementary that not all inconsistencies in the witnesses testimony affect their credibility. Inconsistencies on minor details and
collateral matters do not affect the substance of their declaration, their veracity, or the weight of their testimonies. [43] Thus, although
there may be inconsistencies on the testimonies of witnesses on minor details, the same do not impair the credibility of the witnesses
where there is consistency in relating the principal occurrence and positive identification of the assailants. [44]
In the cases at bar, it was fully established that prosecution witnesses Leopoldo, Atty. Valenzuela and Rogelio Gacad were at the crime
scene during the shooting incident. They unanimously identified the appellant as the assailant. They declared that the appellant
appeared at the scene unnoticed and suddenly fired two (2) successive shots at them. One shot was for Pedro who was hit in the
head, the other, for Atty. Valenzuela who was seriously wounded in the stomach. They identified the weapon used as a long
firearm. The consistent testimonies of the aforesaid prosecution witnesses on these material points cannot be disregarded by any
court.
In People vs. Sabalones,[45] it was alleged that the prosecution account had inconsistencies relating to the number of shots heard, the
interval between the gunshots and the victims positions when they were killed. We dismissed the allegation as minor and
inconsequential flaws which strengthen, rather than impair, the credibility of said eyewitnesses and held that such harmless errors are
indicative of truth, not falsehood, and do not cast serious doubt on the veracity and reliability of the testimony of the complainant.
In line with the above ruling, we hold that the cited inconsistencies in the testimonies of the prosecution witnesses and their sketches of
the sitting arrangement during their drinking spree refer to trivial matters and are insufficient to destroy their credibility. We do not
expect witnesses to give an error-free testimony, especially when the hearing of the case took place almost two (2) years after the
shooting incident, as in the cases at bar.
The other inconsistent evidence alluded to by the appellant was the trajectory of the bullets that caused the death of Pedro and
seriously injured Atty. Valenzuela vis--vis the sketch of Rogelio showing that the appellant appears to be standing on the east side of
Pedro. Appellant contend that if he were east of Pedro, the bullet would have entered the right side of the head, not the left, as per his
medical records.
Again, we are not convinced that Rogelio indeed lied when the latter claimed that the appellant was standing in the east, directly behind
Pedro, during the shooting incident. At the trial, Rogelio testified that he was facing west when he urinated. His companions were
behind him, or in the east. He turned around upon hearing the first two (2) bursts of gunfire. It is clear that Rogelio did not see the exact
positions of the appellant and Pedro when the first shot was fired. What he saw then was that Pedro was hit in the head and slumped
on the bamboo bed while Atty. Valenzuela was hit in the stomach while about to help Pedro. It was only then that Rogelio saw the
appellant who was armed with a long firearm, standing behind Pedro. Clearly, the sketch drawn by Rogelio pertains to the positions of
the protagonists after, and not during the shots were fired. The alleged inconsistency is, therefore, more imaginary than real. Even
assuming that the position of the appellant was not accurately depicted in the questioned sketch, still, it does not negate the fact that
the appellant was the triggerman. He was the only person standing there, close to the victims, with his long firearm pointed at Pedro
and Atty. Valenzuelas direction. There could be no other culprit.
As for the injury of Atty. Valenzuela, the records show that he was moving when the appellant shot himhe was turning to his right to
check on Pedro after the first gunshot. Thus, the appellant was almost in front, or, at the very least, at the side of Atty. Valenzuela,
although he was still standing behind Pedro, when the second shot was fired.
The foregoing position of the parties is consistent with the medical opinion of Dr. San Juan. He explained that the trajectory of the bullet
as it entered the right side of the stomach of Atty. Valenzuela showed that the appellant was in front or at the side of the said
victim. [46] He opined that Atty. Valenzuela could have been in a stooping position when he was shot in such a stooping position, it was
not far-fetched that the bullets entry was at the right side of his stomach and for the slug to lodge on the right side of his pelvic area, at
the back.[47]
In sum, we are morally convinced of appellants guilt. Significantly, the records show that he took flight after the killingthe shooting
incident happened on August 24, 1996 while the appellant was arrested only on August 18, 1998, almost two (2) years later. The
appellant did not offer any explanation for his long absence. Flight, when unexplained, is an indicium of guilt.[48] Indeed, the innocent is
as bold as a lion, while the guilty runs even when no man pursues him.
The trial court correctly found the appellant guilty of murder and frustrated murder in view of the presence of treachery. There is
treachery when the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to
retaliate; and such means, methods, and forms of execution were deliberately and consciously adopted by the accused without danger
to his person.
In the cases at bar, the appellant surreptitiously arrived at the crime scene. He suddenly shot Pedro and Atty. Valenzuela from behind
at a close range of three (3) meters while he was having a drinking spree with their relatives and friends. The attack was unexpected
and swift. Pedro and Atty. Valenzuela had no opportunity to defend themselves and the appellant was not exposed to any danger in
view of the unexpected attack. Thus, the aggravating circumstance of treachery was established.
The medical report showed that Atty. Valenzuela was critically wounded during the shooting incident. His vital organs, namely, lungs
and abdomen, were perforated. The gunshot wound would have caused his death, had it not been for the timely and adequate medical
intervention provided by Dr. San Juan. Thus, the appellant was also correctly found liable for the frustrated murder of Atty. Valenzuela.
We now review the penalties for the crimes committed by the appellant.
The records show that the appellant was not licensed to possess or carry a firearm.[49] Thus, the firearm he used in shooting his victims
is unlicensed.
When the crimes at bar were committed in August 1996, the rule was that one who kills another with the use of an unlicensed firearm
commits two (2) separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2) aggravated illegal
possession of firearm under the second paragraph of Section 1 of Presidential Decree No. 1866.[50]
The penalty for murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659,[51] is reclusion perpetua to
death while the penalty prescribed for aggravated illegal possession of firearm, i.e., the killing of a person with the use of an unlicensed
firearm, under P.D. No. 1866,[52] is death.
On June 6, 1997, however, Congress approved Republic Act No. 8294.[53] It provides that if homicide or murder is committed with the
use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.[54] In People v.
Molina,[55] we held that where murder or homicide is committed, the separate penalty for illegal possession shall no longer be meted out
inasmuch as it becomes merely a special aggravating circumstance.
The trial court applied R.A. No. 8294 in the murder case at bar and in line with our ruling in Molina[56] held that the use of the unlicensed
firearm in the killing of Pedro aggravated the commission of the crime. He then meted the maximum penalty of death to the appellant.
After Molina, however, the Revised Rules of Criminal Procedure was promulgated by this Court and became effective on December 1,
2000. Section 8 of Rule 110 requires that the complaint or information must specify the qualifying and aggravating circumstances of the
offense if they are to be appreciated. In the case at bar, the special aggravating circumstance of use of unlicensed firearm was not
alleged in the informations. The two (2) informations at bar, for murder and frustrated murder, merely alleged that the appellant used
a long firearm. They did not allege that the firearm used was unlicensed. The failure of the prosecution to allege in the Information the
aggravating circumstance of use of unlicensed firearm in committing the crime of murder prevents us from imposing the death penalty
on the appellant even if the same was proved at the trial. The appellant should, therefore, suffer the lesser penalty
of reclusionperpetua.
The penalty prescribed by the Revised Penal Code for the consummated crime of murder is reclusion perpetua to death. For frustrated
murder, Article 50 of the same Code decrees the imposition of the penalty next lower in degree or reclusion temporal.[57] Absent any
aggravating or mitigating circumstance, the imposable penalty should be reclusion temporal in its medium period, the duration of which
is from 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law, the minimum penalty shall
be within the range of prision mayor,[58] the penalty next lower from reclusion temporal. The gravity of the injury suffered by Atty.
Valenzuela and the manner of execution of the crime by the appellant compel us to impose the maximum term of 12 years
of prision mayor as his minimum indeterminate sentence, and 14 years, 8 months and 1 day of reclusion temporal medium as his
maximum indeterminate sentence.
As for the civil liability of the appellant for the death of Pedro Valenzuela, Jr., we affirm the award of civil indemnity in the amount
of P50,000.00.[59] As regards the actual damages, it appears that the amount of P157,463.25 was based solely on the personal list
prepared by the widow of the deceased victim. The only expense supported by an official receipt was the memorial services provided
by JC Mortuarium, amounting to P25,000.00 marked as Exhibit F. The Court can only give credence to actual expenses supported by
receipts which appear to have been genuinely spent in connection with the victims death.[60] The moral damages in the amount
of P500,000 is also modified and reduced to P50,000.00 pursuant to the current policy of this Court.[61]
The claim of Atty. Valenzuela for the medical expenses he incurred in connection with the injury he suffered is affirmed as they are
properly documented. His lost earnings while recuperating, however, is not supported by evidence. The claim that his lost income
amounted to P150,000.00, from August 1996 to February 1997, is too general and vague. The moral damages awarded in the amount
of P1,000,000.00 is modified and reduced to P50,000.00.
IN VIEW WHEREOF, the Joint Decision, dated November 11, 1998, of the Regional Trial Court of Urdaneta City, Pangasinan, Branch
45, in Criminal Cases Nos. U-9032 and U-9168, is AFFIRMED, with the following modifications:
1. In Criminal Case No. U-9032, for murder, the appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to pay
the heirs of the deceased victim, Pedro Valenzuela, Jr., the amounts of: (a) P50,000.00 as civil indemnity for his death, (b) P25,000.00
as actual damages, and (c) P50,000.00 as moral damages.
2. In Criminal Case No. U-9168, for frustrated murder, the appellant is sentenced to suffer the indeterminate sentence of 12 years of
prision mayor maximum as minimum, to 14 years, 8 months and 1 day of reclusion temporal medium as maximum. The appellant is
also ordered to pay Atty. Napoleon Valenzuela the amounts of: (a) P216,251.80 as actual expenses and (b) P50,000.00 as moral
damages.
No pronouncement as to costs.
SO ORDERED.
2. TRUNK INJURIES
THE PEOPLE OF THE PHILIPPINES vs. HENRY TOGAHAN, EMELDO LAURO, VELASCO, JR., JJ.
DANILO BALINDO (at large) and
MARCO TURGA (at large),
Appellants Henry Togahan (Togahan) and Emeldo Lauro (Lauro) assail the Decision[1] of the Court of Appeals dated 5 May 2006,
affirming with modification the Decision[2] of the Regional Trial Court (RTC), Branch 28,[3] Lianga, Surigao del Sur, dated 24 September
2003. The RTC had found appellants guilty beyond reasonable doubt for the murder of Ananias Villar, Sr. (Villar), and his son-in-law
David Gene Richardson (Richardson).
On 13 September 2000, appellants, together with their co-accused Danilo Balindo (Balindo) and Marco Turga (Turga), were charged
with two (2) counts of murder, in separate Informations[4] filed by Prosecutor Zacharias P. Joven, the texts of which read:
Criminal Case No. L-1674
That on the 12th day of May 2000, at about 6:30 oclock in the evening more or less, in Purok 1, Spring, [B]arangay Amaga,
[M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, armed with .38 caliber pistol, conspiring, confederating and mutually helping each other, with evident premeditation, treachery
and intent to kill, did then and there willfully, unlawfully and felon[i]ously shot one Ananias Villar, Sr. with the use of said deadly
weapon, as a result thereof the latter was hit and sustained the following wounds or injuries:
Gunshot wound[,] suprasternal area

Gunshot wound[,] left flank at the level of umbilicus
Gunshot wound[,] right upper quadrant parasternal
Lacerated wound[,] on left post auricular area
which wounds or injuries caused his instantaneous death to the damage and prejudice of his heirs in the following amount:
P50,000.00 as life indemnity of the victim

P15,000.00 as moral damages
P15,000.00 as exemplary damages.
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Criminal Case No. L-1675
That on the 12th day of May 2000, at about 6:30 oclock in the evening more or less, in Purok 1, Spring, [B]arangay Amaga,
[M]unicipality of Barobo, [P]rovince of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with .38 caliber pistol, conspiring, confederating and mutually helping each other, with evident prem[e]ditation,
treachery and intent to kill, did then and there willfully, unlawfully and felon[i]ously shot one David Gene Richardson, an [A]merican
national, with the use of said weapon, as a result thereof the latter was hit and sustained the following wounds or injuries:
Gunshot wound[,] right lower quadrant

Hematoma[,] right leg lateral aspect
Abrasion, [l]inear right shoulder
Abrasion, linear lumbar area
which wounds or injuries caused his instantaneous death to the damage and prejudice of his heirs in the following amount:
P100,000.00 as life indemnity of the victim

P15,000.00 as moral damages
P15,000.00 as exemplary damages.
CONTRARY TO LAW. (In violation of Article 248 of the Revised Penal Code).
Custody only of appellants Togahan and Lauro was acquired. Their co-accused Balindo and Turga remained at large then and to this
day. Upon being arraigned separately, both appellants pleaded not guilty.[5] Trial on the merits ensued with the prosecution espousing
the following narration of facts:
On 12 May 2000, at around 6:30 p.m., Magdalena Villar (Mrs. Villar), her daughter Vilma Villar-Richardson (Mrs. Richardson), son-in-
law Richardson, grandchildren Kenneth, Kevin, Junelyn, Jovelyn and Michelle, and brother Pedro Castillo were all watching television
in the living room of their residence in Spring, Amaga, Barobo, Surigao del Sur. Without warning, two armed men wearing bonnets
suddenly arrived. At that time, the victim Villar, husband of Mrs. Villar, was in his room. When Villar heard the commotion, he went to
the door and tried to prevent the armed men from entering, but he was shot twice, pulled towards the balcony and clubbed to death.[6]
One of the armed men, later identified as Togahan, pointed a gun at Mrs. Richardson and pulled the trigger thrice. The gun did not fire
however. The other man, later identified as Lauro, approached Richardson and likewise pointed a gun at him. When Mrs. Richardson
heard gunfire, she asked the men: Who are you, what do you want? To this, Lauro replied: We are here for war.[7] Mrs. Richardson told
her husband to run away but the latter, in an attempt to protect his wife, struggled and tried to wrestle the gun away from Togahan
instead. In the course thereof, Lauro shot Richardson then ran out of the house with Richardsons 3-year old son.[8] Richardson, in spite
of his wound, chased Lauro but was later found sitting on the mud, unable to talk and dying. The rest of the family had fled during the
commotion and sought refuge. Villar and Richardson were brought to DO Plaza Memorial Hospital in Patin-ay, Prosperidad, Surigao
del Sur but were dead upon arrival.[9]
In her testimony, Mrs. Richardson narrated that during the struggle between her husband and Togahan for the gun, the mask of the
latter was removed by Richardson; thus, she was able to recognize Togahan as the assailant who poked and tried to fire the gun at
her. Mrs. Richardson was able to identify Lauro through his voice and physical appearance as the one who remarked We are here for
war.[10] Lauro was alleged to be responsible for shooting her father, Villar, twice and also for shooting her husband, Richardson.
Eyewitness Lowelito Villar (Lowelito), grandson of victim Villar, testified that on the evening of the incident, he was in his home about
fifteen (15) meters away from his grandparents house when he heard a gun burst. He immediately ran towards the house of his
grandparents and hid behind a coconut tree, also about fifteen (15) meters from victim Villars house. He claims to have seen three (3)
armed and masked men he identified as Togahan, Lauro and Balindo enter the victims house. According to the witness, Lauro
shot Richardson in the house whereas Lauro and Balindo shot and clubbed his grandfather in the balcony. After the attack, all the
accused ran out of the house, removing their masks in the process. Witness Lowelito maintained that he had been friends with the
accused for five (5) years and recognized them because of their physical features and movements and that he could see the events
that transpired as there were fluorescent lamps lit inside and outside the house.[11]
The prosecution likewise presented witnesses to fortify the charges of participation against appellants. Witness Rosemarie Enriquez, a
former sweetheart of Togahan, testified that the pair of slippers recovered from the scene of the crime belonged to the latter.[12] It was
witness Federico Sayson, Barangay Kagawad of Purok 1, Spring, Amaga, Barobo, Surigao del Sur, who discovered the pair of slippers
and a dirty white jacket about thirty (30) meters from the house of Villar.[13]
SPO2 Santo Ocate, the firearm examiner of the Philippine National Police, Caraga Region who conducted the physical examination of
two bullets recovered from the crime scene, testified that the bullets were discharged from a .38 caliber revolver.[14]
Upon request of Mrs. Richardson, Dr. Edgar Savella, Medico-Legal Officer of the National Bureau of InvestigationCaraga Region,
conducted an autopsy of the bodies of the victims. Dr. Savella testified that the gunshot wound sustained by Richardson on his
abdomen was fatal and caused his death, the bullet having hit the sciatic artery on his right leg, as well as his vertebrae in the lumbar
area.[15] Villar, on the other hand, died of multiple gunshot wounds to his chest and abdomen.[16] Dr. Savella found no indication of self-
defense or struggle-related injuries on both Villar and Richardson.[17]
Dr. Tomas Centino testified that he conducted the examination of the bodies of the victims who were both clinically dead upon arrival at
the DO Plaza Memorial Hospital.[18] He likewise opined that the respective gunshot wounds sustained by Villar and Richardson were
fatal and the immediate cause of their death.[19]
To counter the prosecution, Togahan presented the defense of alibi. He testified that on 12 May 2000, at 6:30 p.m., he was in the home
of his parents-in-law in Barangay Bahi, Barobo, Surigao del Sur, with whom he and his family lived. He averred that he was playing
with his children at that time. Thereafter, he had supper with the entire family, retired with the household to the balcony
from 7:00 to 9:00 p.m., and then went to sleep at 9:00 p.m.[20] The following day, appellant maintains that he and his father-in-law
repaired the gutter of their house.[21] On 14 May 2000, appellant was allegedly fetched by his brother at 9:00 a.m. to visit their father
who was seriously ill in Barangay Tagongon, Barobo, Surigao del Sur.[22]
To corroborate Togahans alibi, his father-in-law, Segundo Andalan, testified that on 12 May 2000, appellant helped him in repairing
their house. Beginning around 6:30 p.m., the whole family had dinner, took their rest and then went to bed. He asserted that appellant
did not leave their house that night. Their repair work on the house allegedly continued the next day. According to the witness,
appellants sister fetched him on 14 May 2000, at around 1:00 p.m. as their father was ill.[23]
Similarly, Lauro denied the charges made against him. Appellant maintains that on 12 May 2000, he was in the home of his brother in
Purok 4, Barobo, Surigao del Sur, helping the latter arrange stones on which their billiard table was to be placed. At around 6:30 p.m.,
appellant allegedly rested in the balcony of his brothers house with the latters wife and neighbor while his brother prepared supper.[24]
On rebuttal, the prosecution presented two witnesses, the first of whom negated the claims of Lauro that he had never set foot in
Barangay Amaga, Barobo, Surigao del Sur. According to witness Restituto Basada, for about four (4) to five (5) years commencing in
1980, Lauro and his family lived on his property in the said barangay. However, Lauro later fled as Basada filed a case against the
former for stoning him.[25]
The second rebuttal witness of the prosecution, Luzviminda Villar Sabaysabay, was the daughter of victim Villar. She testified that in
March and June 2001, they received letters from Togahan, requesting them to visit him in the provincial jail where he was then
incarcerated. In Togahans second letter, she claimed, he requested a visit to reveal to them that Lauro was one of his companions in
killing Villar.[26]
The RTC found appellants guilty of murder on both charges and sentenced each of them to suffer in each case the penalty of death
and to indemnify the respective heirs of the victims in each case in the amounts of P50,000.00 as civil indemnity, P15,000.00 as moral
damages, P15,000.00 as exemplary damages and costs.[27]
With the death penalty imposed on appellants, the case was elevated to this Court on automatic review. However, pursuant to this
Courts ruling in People v. Mateo,[28] the case was transferred to the Court of Appeals.
On 5 May 2006, the appellate court rendered its decision affirming with modification appellants conviction. In downgrading the penalty
from death to reclusion perpetua, the Court of Appeals held that the RTC erred in appreciating the generic aggravating circumstances
of dwelling and nighttime, both of which were not alleged in the Informations.[29] Thus, there being no mitigating or aggravating
circumstance attending the commission of the crimes, the appellate court imposed the penalty of reclusion perpetua upon appellants
for each count of murder. The dispositive portion of the said decision states:
WHEREFORE, in view of the above disquisitions, the decision under review is hereby AFFIRMED with MODIFICATION that the
penalty is reduced to reclusion perpetua for each of the accused-appellants, and in line with recent jurisprudence the following amounts
are awarded to the heirs of the victims in each case, to wit: P50,000.00 as civil indemnity, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages.
Conformably to the ruling in People vs. Mateo, We refrain from entering judgment therein. The Division Clerk of Court is directed to
elevate the records of this case to the Honorable Supreme Court for final disposition.
SO ORDERED.[30]
In their brief,[31] appellants challenge their conviction for murder, stressing that there is a great doubt as to the identities of the persons
who perpetrated the crime.
The issue of whether or not appellants were in fact identified by the prosecution witnesses is a question of credibility. It is well-settled
that factual findings of the trial court on credibility of witnesses and their testimonies are entitled to the highest respect and will not be
disturbed on appeal in the absence of clear showing that the trial court overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance that would have affected the result of the case. Having seen and heard the witnesses
themselves and observed their behavior and manner of testifying, the trial court was in a better position to decide the question of
credibility.[32]
After an exhaustive review of the records, we find no reason to deviate from the trial courts assessment of the credibility of the
witnesses. The trial court did not err in giving credence to the testimony of the prosecution witnesses that they were able to identify
appellants and their co-accused as perpetrators of the crime.
Mrs. Richardson, in recounting her horrifying experience in the hands of the appellants, categorically identified appellants as the
perpetrators of the vicious crimes, viz:
xxxx
Court:
Few clarificatory question (sic) from the Court.
Q In Exh. A-1, which is the question and answer of your sworn statement, you said that you could not identify the culprit in this case?
A Yes, sir.
Q But in the direct examination now, you were able to identify the suspects as Emeldo Lauro and Henry Togahan?
A Yes, sir.
Q Why is it now that your testimony is now in conflict with that of your sworn statement?
A Because they asked me a lot of questions. I was then depressed. I dont (sic) know what to do. I lost my husband and when I was told
to go to Barobo, I was in a hurry to call my family in Pennsylvania, sir.
Q The height of your husband is 62 inches?

A Yes, sir.
Q And he tried to grab the bonnet from the assailants?

A Yes, sir.
Q Was he able to grab the bonnets (sic)?

A One of them, sir.
Q Which one of them that (sic) your husband able to grab the bonnets (sic)?
A That guy. (Witness pointing to accused Henry Togahan)
Q Was the bonnet Togahan was wearing held by your husband out of his face?
A Not all the way, sir.
Q Until what part of the face of Henry Togahan?

A Up to the eyebrow, sir.
Q Before the incident, you had not met Henry Togahan?

A No, sir.
Q The other accused Emeldo Lauro, was he wearing also a bonnet at that time?
A Yes, sir.
Q Your husband was not able to pull the bonnet out from his face?
A No, sir.
Q How could you identify Emeldo Lauro as the very person who was responsible in killing your husband and your father?
A Because when I came here, when I saw his appearance and everything, I remembered I heard his voice. Youre the one who said
were here for war. Dont you. You cant deny it.
Q You can identify him?

A Yes, sir, by his voice and his appearance.
Q As you said, it was Henry Togahan who pointed a gun to your head?
A Yes, sir.
Q Is he the same person who shot to death also (sic) your husband?
A No, sir.
Q Who was the person who shot your husband?

A That guy there. The one in the middle. (Witness pointing to accused Emeldo Lauro)
Q That guy?
A Yes, sir.
Q Who shot your father also (also)?

A Same guy, sir.
x x x[33]
Two other prosecution witnesses, Mrs. Villar and Lowelito, similarly identified appellants as the malefactors.[34]
Appellants failed to show that the prosecution witnesses were prompted by any ill motive to falsely testify or accused them of so grave
a crime as murder. The Court adheres to the established rule that, in the absence of any evidence showing reason or motive for the
witness to perjure, their testimony and identification of the assailant should be given full faith and credit.[35]
We cannot see ill-motive on the part of the prosecution witnesses, particularly Mrs. Villar and Mrs. Richardson. As widows of the
victims, they have more reason to desire punishment for the real perpetrators of the crime. It is unnatural for a victims relative
interested in vindicating the crime to accuse somebody other than the real culprit.[36]Human nature tells us that the aggrieved relatives
would want the real killer punished for their loss, and not accept a mere scapegoat to take the rap for the real malefactor.[37]
Concomitantly, witnesses need not know the names of the malefactors so long as they recognize their faces. What is imperative is that
the witnesses are positive as to the perpetrators physical identification from the witnesses own personal knowledge, as is obtaining in
this case.[38] It is the natural reaction of victims of criminal violence to strive to see the appearance of their assailants and to observe the
manner in which the crime was committed. Most often, the face and body movements of the assailant create an impression which
cannot easily be erased from their memory.[39]
Insofar as the alleged inconsistencies between the testimony of Mrs. Richardson and her sworn testimony on identifying the appellants
are concerned, suffice it to say that the affidavits are generally not prepared by the affiants themselves but by others, and affiants are
only made to sign them. Certain discrepancies between declarations made in the affidavit and those made at the witness stand seldom
discredit the declarant.[40] Moreover, Mrs. Richardson was able to satisfactorily explain such inconsistency during her testimony.
Appellants likewise attack the seeming inconsistencies between the testimonies of Mrs. Villar, Mrs. Richardson and Lowelito. They
point to two alleged conflicts in those testimonies which, to their mind, are fatal and discredit the reliability of the witnesses: the number
of assailants and the identification of whom among the culprits shot the victims. These inconsistencies, in our view, are not sufficiently
substantial to impair the veracity of the prosecutions evidence.
While witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreement that all of them
should be disbelieved as liars and their testimonies completely discarded as worthless.[41] As long as the mass of testimony jibes on
material points, the slight clashing statements neither dilute the witnesses credibility nor the veracity of their testimony,[42] for indeed,
such inconsistencies are but natural and even enhance credibility as these discrepancies indicate that the responses are honest and
unrehearsed.[43]
Witnesses cannot be expected to remember all the details of the harrowing event which unfolded before their eyes. Minor
discrepancies might be found in their testimony, but they do not damage the essential integrity of the evidence in its material whole, nor
should they reflect adversely on the witness credibility as they erase suspicion that the same was perjured.[44]
The trial court is correct in disregarding appellants defense of alibi and denial. For the defense of alibi to prosper, the accused must
prove not only that he was at some other place at the time of the commission of the crime but also that it was physically impossible for
him to be at the locus delicti or within its immediate vicinity.[45] Apart from testifying with respect to the distance of their houses from that
of the victims, appellants were unable to explain and show that it was physically impossible for them to be at the scene of the crime.
Between the categorical statements of the prosecution witnesses, on one hand, and the bare denial of appellants, on the other, the
former must perforce prevail.[46] An affirmative testimony is far stronger than a negative testimony especially when it comes from the
mouth of a credible witness. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving of weight in law. They are considered with suspicion and always received with caution, not only because they
are inherently weak and unreliable but also because they are easily fabricated and concocted.[47]
The culpability of appellants and their co-accused is undeniable. Lauro was consistently identified by the witnesses as the person
responsible for shooting both victims. At the same time, the existence of conspiracy among the assailants is patent. Conspiracy has
been deduced by the Court in a case where three malefactors jointly lifted, carried and dumped their victim in a deep well filled with
water head first and threw rocks inside the well to cover him;[48] by the successive acts of three appellants in shooting, clubbing and
piercing the eye of the victim;[49] where one appellant put his arms around the body of the victim while his co-appellant held the thighs
of the victim and while they held him down, one poked and fired the gun at the back of the head of the victim;[50] when two accused
chased their victim into his house, kicked open the door to enter and then shot him;[51] and when one malefactor hacked the victim and
two others chased after the latter to finish up the aggression they had started.[52]
In the instant case, by the concurrent acts of barging into the residence of the victims, holding them at gunpoint and shooting and
attacking the victims, Lauro, Togahan and their co-accused are deemed to have agreed to commit the crime of murder. Each of their
contributory acts without semblance of desistance reflected their resolution to commit the crime.[53] From a legal standpoint, there is
conspiracy if, at the time of the commission of the offense, the appellants had the same purpose and were united in its
execution.[54]Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and
manner in which the offense was perpetrated, or inferred from the acts of the appellants themselves when such acts point to a joint
purpose and design, concerted action, and community of intent.[55] Where conspiracy is established, the act of one is the act of all.[56]
We agree with the trial court that treachery qualified the killing of the victims. The essence of treachery is the sudden and unexpected
attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its
commission without risk to the aggressor, without the slightest provocation on the part of the victim.[57] In the case at bar, four armed
men entered the home of the innocent victims and together used this advantage to facilitate their crime. Aggravating this was the fact
that Villar was a 68-year old man who could not have been reasonably able to put up a defense against the much younger and armed
men.
Thus, we reach the inescapable conclusion that the trial court and the Court of Appeals were correct in finding appellants guilty of two
counts of murder and affirm the imposition of reclusion perpetua upon them for each of the murders committed. Likewise, in line with
recent jurisprudence,[58] we affirm the award of damages in favor of the heirs of the victims.
WHEREFORE, the 5 May 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 00156-MIN finding Henry Togahan and
Emeldo Lauro guilty beyond reasonable doubt of two counts of murder each, is AFFIRMED. They are sentenced to suffer the penalty
of reclusion perpetua for each count of murder and to pay jointly and severally the legal heirs of each victim P50,000.00 as civil
indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.
SO ORDERED.
3. ABDOMINAL INJURY
FERNANDO ESTABAS MAHAWAN alias PADO vs. PEOPLE OF THE PHILIPPINES

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court,[1] petitioner Fernando Estabas Mahawan alias Pado, seeks
the reversal of the Decision[2] of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, which affirmed in toto the
Decision[3] of the Cebu City Regional Trial Court (RTC), Branch 10, in Criminal Case No. CBU-42385, dated 10 August 2004, finding
him guilty of frustrated homicide.
The records of the case bear the following facts:
On 18 October 1996, an Information[4] was filed before the RTC charging petitioner with frustrated homicide. The accusatory portion of
the information reads:
The undersigned Prosecutor I of Cebu City accuses FERNANDO ESTABAS MAHAWAN alias PADO of the crime of FRUSTRATED
HOMICIDE, committed as follows:
That on or about the 5th day of October, 1995, about 9:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, armed with a firearm, with deliberate intent and with intent to kill, did then and there attack, assault
and use personal violence upon the person of Diosdada Paradero, by firing shots at said DiosdadaParadero, hitting her on the vital
parts of her body, thereby inflicting upon her the following physical injuries:
GUNSHOT WOUND POINT OF ENTRY 3rd ICS (LEFT) MCL. NO POINT OF EXIT, 4 PT. PERFORATION DESCENDING COLON,
GRADE II LIVER INJURY SEGMENT I, 1.5 CM. DIAPHRAGMATIC RENT (LEFT) INCISED WOUND (LEFT) EAR LOBULE, (RIGHT)
WRIST
which injuries, under ordinary circumstance, would cause the death of said Diosdada Paradero, thus performing all the acts of
execution which would have produced the crime of homicide, but which nevertheless did not produce it by reason of causes
independent of the will of the herein accused, that is, by the timely and able medical assistance rendered to
said Diosdada Paradero which prevented her death.
When arraigned on 22 April 1997, petitioner, assisted by his counsel de parte, pleaded Not guilty to the charge.[5] Trial on the merits
thereafter followed.
The prosecution presented as witnesses private complainant Diosdada S. Paradero (Paradero), Dr. James Guardiario (Dr. Guardiario),
and Police Chief Inspector Myrna Arreola (Inspector Arreola). Their testimonies, woven together, produce the following narrative:
Paradero is a resident of B. Aranas Extension, Cebu City. Her house has two floors. She operates a store on the ground floor, while the
second floor is utilized by her and her family as sala and bedrooms.
On 5 October 1996, at about 9:30 p.m., Paradero was tending her store when petitioner arrived and asked her for a bottle of beer. She
told petitioner that there was no more beer. When she was about to open the refrigerator in the store to show petitioner that there was
really no more beer, petitioner sneaked inside the store. She closed the refrigerator and faced petitioner. Suddenly, petitioner pulled out
a gun (caliber .38 revolver) and shot her on the left chest. She retreated and fell on the ground. As petitioner moved closer to her, she
grabbed a kitchen knife nearby to defend herself. Petitioner shot Paradero again but the bullet this time merely grazed her left
earlobe. Petitioner snatched the kitchen knife from her hand and fled the store.
Paraderos sister and some neighbors brought her to Chong Hua Hospital where the gunshot wound in her left chest was treated. She
also underwent a surgical operation on her colon (large intestine), liver and diaphragm as these vital organs were hit by the trajectory of
the bullet. Dr. Guardiario performed the said treatment and operation.
Meanwhile, petitioner was brought by the police authorities to the Cebu City Police Station for investigation. Thereupon, a paraffin test
was conducted on him by Inspector Arreola. The result of the test showed there was gun powder residue on his right hand.
On 16 October 1996, Paradero was discharged from the Chong Hua Hospital.
On 3 February 1997, Paradero was confined and she underwent another operation on her colon at
the Don Vicente Sotto Medical Center. She was discharged therefrom on 14 February 1997.[6]
The prosecution adduced documentary pieces of evidence to buttress the aforesaid allegations, to wit: (1) medical certificate
of Paradero issued by Dr. Guardiario (Exhibit A);[7] (2) medical certificate of Paradero issued by the chief of Vicente Sotto Memorial
Medical Center (Exhibit B);[8] (3) list of expenses and official receipts as regards Paraderos treatment and confinement for a gunshot
wound (Exhibit C);[9] (4) subpoena duces tecum issued by the RTC to Inspector Arreola (Exhibit D);[10] (5) physical science report on the
paraffin test conducted on petitioner (Exhibit E);[11] and (6) letter-request for paraffin test on petitioner (Exhibit F).[12]
For its part, the defense presented the testimonies of petitioner and his friend/neighbor named Antonio Artiaga (Artiaga) to refute the
accusations against him. Petitioner disclaimed any liability and invoked self-defense. His version of the incident, as corroborated
by Artiaga on some relevant points, is as follows:
On 5 October 1996, at around 9:30 p.m., petitioner went to Paraderos store to buy cigarettes. Upon arriving there, he
saw Paradero standing near the stores door. He asked Paradero if he could buy cigarettes. Paradero replied in a loud voice that she
did not have any stock of cigarettes. Suddenly, Paradero, then holding a knife, went out of the store and approached
him. Paradero tried to stab him with the knife but he parried the thrust. He and Paradero grappled for possession of the knife causing
him injury on the left finger. He did let go of Paradero. The latter, however, attacked him again with the knife. This time he was slightly
hit by the knife on the stomach. He drew his firearm and shot Paraderowho, upon being hit by the bullet, slumped on the ground. He
took Paraderos knife and went home. Subsequently, he proceeded to his brothers house where he called a policeman named Senior
Police Officer 2 (SPO2) Quevedo. He surrendered to SPO2 Quevedo upon the latters arrival at his (petitioner) brothers
house. SPO2 Quevedo brought him to the Cebu City Police Station where he was investigated. Afterwards, he was taken to
the Cebu City Medical Center for treatment of the injuries sustained during the incident. Later, he learned that Paradero attacked him
with a knife because Paradero had a quarrel with his (petitioner) wifes relative named Dindo Ruiz (Ruiz), who was allegedly stabbed
and killed by Paraderos bata-bata (subordinates).[13]
The defense likewise proffered the medical certificate of petitioner to support his claims. The medical certificate states that petitioner
was treated for incised wounds on the left finger and for abdominal abrasion.[14]
After trial, the RTC rendered a Decision convicting petitioner of frustrated homicide, sentencing him to an indeterminate term of 6 years
of prision correccional, as minimum, to 10 years of prision mayor, as maximum. He was also ordered to pay Paradero the amounts
of P110,000.00 as actual damages, P50,000.00 as exemplary damages, P9,000.00 as unearned income, and P50,000.00 as attorneys
fees. The dispositive portion of the RTC Decision reads:
WHEREFORE, PREMISES CONSIDERED, this Court finds the accused FERNANDO ESTABAS MAHAWAN, GUILTY of committing
the crime of FRUSTRATED HOMICIDE. He is hereby sentenced to suffer the indeterminate term of SIX (6) YEARS of PRISION
CORRECCIONAL as minimum to TEN (10) YEARS OF PRISION MAYOR as maximum thereto.[15]
Petitioner filed a motion for reconsideration[16] of the RTC Decision but this was denied.[17] Undaunted, he appealed to the Court of
Appeals.
On 25 May 2006, the appellate court promulgated its Decision affirming in toto the RTC Decision. Petitioner sought a
reconsideration[18] of the appellate courts decision but it was denied.[19] Thus, petitioner lodged the instant petition before us assigning
the following errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING IN ITS QUESTIONED DECISION THAT ACCUSED-
APPELLANT, PETITIONER HEREIN, FAILED TO FIRMLY ESTABLISH THAT UNLAWFUL AGGRESSION PRECEDED HIS ATTACK
ON THE PRIVATE OFFENDED PARTY;
II.
COROLLARILY TO THE FOREGOING, BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT
LIKEWISE ERRED IN CONCLUDING THAT THE SECOND AND THIRD ELEMENTS OF SELF-DEFENSE ARE WANTING IN THE
CASE AT BAR;
III.
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN NOT FINDING THAT THERE WAS NO INTENT TO KILL ON THE
PART OF ACUSED-APPELLANT, PETITIONER HEREIN;
IV.
BOTH THE HONORABLE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN NOT APPRECIATING THE
EQUIPOISE DOCTRINE IN FAVOR OF THE ACCUSED-APPELLANT, PETITIONER HEREIN;
V.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING IN TOTO THE AWARD FOR DAMAGES GRANTED BY
THE LOWER COURT;
VI.
THE HONORABLE COURT OF APPEALS ERRED IN DENYING ACCUSED-APPELLANTS, PETITIONER HEREIN, EARNEST
MOTION FOR RECONSIDERATION WITHOUT CLEARLY SETTING FORTH THE FACTS AND LAW AS BASIS FOR THE DENIAL
THEREOF.[20]
In the main, petitioner argues he should be acquitted because he merely acted in self-defense when he shot Paradero during the
incident.
It is axiomatic that where an accused pleads self-defense, he thereby admits authorship of the crime. Accordingly, the burden of
evidence is shifted to the accused who must then prove with clear and convincing proof the following elements of self-defense: (1)
unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the attack; and (3)
lack of sufficient provocation on the part of the person defending himself. Although all three elements must concur, self-defense must
rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression attributed to the victim is established,
there can be no self-defense, whether complete or incomplete. Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense to apply.[21]
As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate
manner, which places the defendants life in actual peril. There is an unlawful aggression on the part of the victim when he puts in
actual or imminent danger the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use
of weapon. To constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril
sought to be avoided is imminent and actual, not merely imaginary.[22]
Petitioner asserts that the findings of the RTC and the Court of Appeals are in contrast as to whether there was unlawful aggression on
the part of Paradero during the incident; that the Court of Appeals erred in concluding that he failed to establish unlawful aggression on
the part of Paradero; that such conclusion contradicts the RTCs finding that there was unlawful aggression on the part of Paradero; and
that the RTCs view is more consistent with the facts and evidence on record as compared with the disquisition of the Court of
Appeals.[23]
We shall first ascertain whether the findings of the RTC and the Court of Appeals are contradictory as to whether petitioner failed to
establish unlawful aggression on the part of Paradero.
In support of his claim that the RTC found unlawful aggression on the part of Paradero, petitioner quoted the following excerpts[24] from
the RTC Decision:
This Court cannot sustain private complainants claim that accused Mahawan, for a flimsy reason that she had no more beer, would
immediately enter her store and shoot her with his firearm. x x x.
xxxx
Correspondingly, this Court would find Mahawans claim that it was the private complainant who attacked him first, to be in accordance
with human knowledge and experience of mankind, more so, that accused has a corroborative witness in the person of Mr.
Antonio Artiaga, who testified that he saw private complainant holding a knife and was attempting to stab the accused.
As can be gleaned from the foregoing, the RTC believed petitioners allegation that it was Paradero who attacked first during the
incident. It should be observed, however, that the RTC does not specifically state or conclude that there was unlawful aggression on
the part of Paradero.
In the succeeding paragraph, the RTC categorically pronounced that there was insufficient evidence to determine the unlawful
aggressor during the incident, thus:
In the case at bar, there is insufficient evidence to determine who was the unlawful aggressor from the start, which would
qualify accuseds claim of self-defense. It was thus held that:
In the absence of evidence showing that the victim was the unlawful aggressor at the start, the law will consider the aggression as
reciprocal between the combatants.[25]
The subsequent disposition of the RTC implies that although the prosecution failed to show by sufficient evidence that it was petitioner
who first attacked Paradero, the defense likewise failed to establish that unlawful aggression on the part of Paradero preceded
petitioners attack on her. This, in effect, means that petitioner failed to discharge his burden of proving with clear and convincing
evidence that there was unlawful aggression on the part of Paradero. This conclusion was evident from the fact that the RTC
disregarded petitioners claim of self-defense and convicted the latter of frustrated homicide.[26]
The seemingly confusing statements in the RTC Decision may be a mere result of inadvertence in the drafting of the
same. Nevertheless, petitioner cannot capitalize on such in arguing his case. He cannot pluck and cite some portions of the RTC
Decision which fit his defense and disregard or omit those parts which are adverse to him. It should be borne in mind that the decision
of the court should be read and understood in its entirety.[27]
Given the foregoing, we rule that there is no contradiction between the findings of the RTC and the Court of Appeals that petitioner
failed to establish unlawful aggression on the part of Paradero.
We shall now determine whether the findings of both courts that petitioner failed to establish unlawful aggression on the part
of Paradero were correct.
Paradero testified that on the night of the incident, petitioner went to her store and asked for a bottle of beer. When she told petitioner
that there was no more beer, the latter entered her store, confronted her, and shot her with a gun. There is nothing in the foregoing
which evinces unlawful aggression on the part of Paradero. What is clear is that petitioner was the aggressor during the incident. We
have carefully examined the testimony of Paradero and found it to be credible and trustworthy. She testified in a clear and consistent
manner during the trial. She was faithful and steadfast in recounting her ordeal despite the grueling cross-examination of the defense.
Besides, Paradero testified that petitioner was drunk at the time of the incident. She also declared that she had known petitioner since
1988 and that the latter had, under the influence of alcohol, assaulted several persons.[28] These circumstances reinforce the allegation
petitioners propensity for harming people when he gets drunk.
On the other hand, petitioner narrated that when he went to Paraderos store to buy cigarettes, the latter replied in a loud voice that she
did not have any stock of cigarettes. Paradero, then holding a knife, suddenly went out of the store and attacked him. This testimony
does not inspire belief. It is inconsistent with logic and human experience that after Paradero told petitioner that there were no more
cigarettes, Paradero would thereafter immediately attack petitioner. Precisely, there was no reason for Paradero to be angry and
thereupon assault petitioner. It was petitioner who had more reason to be angry and attack Paradero, because the latter had told him in
a loud voice that there were no more cigarettes. Petitioner alleged that Paradero attacked him because she had a grudge against his
wifes relative named Dindo Ruiz. He also claimed that Ruiz had been stabbed and killed by Paraderos bata-bata (subordinates). These
uncorroborated allegations deserve scant consideration for being unsubstantiated and unsupported by evidence.
The fact that petitioner sustained injuries on his hand and stomach, allegedly caused by Paraderos knife, does not signify that he was a
victim of unlawful aggression. The medical certificate presented by petitioner states that the latter sustained incised wounds on the
2nd and 5th fingers measuring 2 centimeters and abdominal abrasion measuring 2.5 centimeters. Petitioner was discharged on the
same day he was treated in the hospital.[29] It is clear from the foregoing that the injuries he sustained were not serious or severe. The
superficiality of the injuries was not indication that his life and limb were in actual peril.[30]
In stark contrast, Paradero sustained a gunshot wound on the left chest. The trajectory of the bullet hit and seriously injured her liver,
colon and diaphragm. This caused her to undergo two surgical operations. She also sustained wounds on her left forearm, right wrist
and left earlobe. Based on the foregoing, it is difficult to believe that Paradero was the unlawful aggressor. The gravity, location, and
number of wounds she sustained belie self-defense on petitioners part.[31]
Hence, the RTC and the Court of Appeals were correct in concluding that petitioner failed to establish unlawful aggression on the part
of Paradero.
Apropos the second issue, petitioner maintains that the second element of self-defense, which is reasonable necessity of the means
employed to prevent or repel the attack, was present in the instant case; that although he was younger, taller, and heavier
than Paradero, it does not mean that there was no reasonable necessity on his part to shoot Paradero; that the RTC and the Court of
Appeals overlooked the fact that he was forced to shoot Paradero because the latter had already stabbed him twice and thus caused a
wound on his belly measuring 4 centimeters; that people react differently to a given situation, and that he merely acted under the
instinct of self-preservation; that any person placed in his situation during the incident would do the same thing he did and would not
risk the chance of being stabbed for the third time or expose himself to unnecessary danger; and that it was unfair to judge his act as
totally and morally wrong.
Further, petitioner avers that the third element of self-defense, which is lack of sufficient provocation on the part of the person making
the defense, was present in the case at bar; and that he did not commit any act or omission which provoked Paradero to attack him.[32]
The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary
to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the
weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means
of attack and the defense.[33]
In the case at bar, there was no reason or necessity for petitioner to shoot Paradero with a gun. Paradero was merely tending her store
and did not attack or place in danger the life of petitioner during the incident. Even if we are to adopt petitioners version of the incident,
his act of shooting Paradero would not also be a reasonable and necessary means of repelling the aggression allegedly initiated
by Paradero. As aptly observed by the RTC:
Indubitably, considering the age, height, built and sex of the accused and the victim, the accused was 31 years old and about 59 to
510 in height and heavily built, while the victim is frail and about 51, more or less, in height, the struggle for the possession of the knife
would be over in a few seconds and accused would be able to disarm the victim. There is, therefore, no immediate need for the
accused to fire his gun to stop the victim from attacking him. Proof of this is the knife presented by the accused in court which he had
allegedly confiscated from the private complainant.[34]
In addition, petitioner was armed with a gun while Paradero supposedly held a knife. Petitioner should have fired a warning shot first to
ward off Paradero or, if the latter persisted in attacking, fired a shot at a non-vital portion of her body in order to disable her instead of
shooting her instantly in the chest. Further, when Paradero allegedly approached and tried to stab him, petitioner was not trapped or
cornered in a specific area such that he had no way out. He testified that he and Paradero were outside the store during the
incident. He could have run away and called the neighbors or police for help. In short, petitioner had other less harmful options than to
shoot Paradero. Indeed, petitioners act failed to pass the test of reasonableness of the means employed in preventing or repelling an
unlawful aggression.
As we earlier found, petitioner shot Paradero when she told him there was no more stock of cigarettes. Paradero then was forced to
grab a knife to defend herself. Clearly, petitioner provoked Paradero and not the other way around. Hence, the element of lack of
sufficient provocation on the part of the person making the defense is also wanting in the present case.
Self-defense is inherently a weak defense because, as experience has demonstrated, it is easy to fabricate and difficult to
prove.[35] Thus, for this defense to prosper, the accused must prove with clear and convincing evidence the elements of self-
defense. He must rely on the strength of his own evidence and not on the weakness of that of the prosecution. Even if the evidence of
the prosecution is weak, it cannot be disbelieved if the accused admitted responsibility for the crime charged.[36] In the case before us,
petitioner failed to prove with plausible evidence all the elements of self-defense. Hence, his plea of self-defense must fail.
Regarding the third issue, petitioner posits that the fact that he shot Paradero only once showed that he had no intent to kill her. There
would have been intent to kill on his part if he shot Paradero several times, but such was not the case. Further, when Paradero fell on
the ground, he immediately left the scene. He could have finished her off at that moment if he really intended to kill her.[37]
An essential element of homicide, whether in its consummated, frustrated or attempted stage, is intent of the offender to kill the victim
immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by
direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.[38]
Evidence to prove intent to kill in crimes against persons may consist, inter alia, of the means used by the malefactors; the nature,
location and number of wounds sustained by the victim; the conduct of the malefactors before, at the time of, or immediately after the
killing of the victim, the circumstances under which the crime was committed; and the motive of the accused. [39]
In the instant case, petitioner used a lethal weapon, i.e., a gun, in assaulting Paradero. He shot Paradero twice at a distance of two
meters.[40] The bullet from the first shot hit Paraderos left chest. The trajectory of the bullet hit Paraderos vital organs such as the liver
and colon. The bullet from the second shot hit Paraderos left earlobe. Moreover, Dr. Guardiario testified that the injury
on Paraderos colon was fatal and would have caused her death were it not for the timely medical attention given her.[41] The
seriousness of Paraderos injuries was also shown by the fact that she was confined and operated on twice in different hospitals for the
wound sustained in the colon. Verily, the foregoing circumstances clearly manifest intent to kill on the part of petitioner.
Even assuming, arguendo, that Paradero sustained only one gunshot wound, such does not negate intent to kill on the part of
petitioner. The number of wounds inflicted is not the sole consideration in proving intent to kill.[42] As earlier mentioned, the means used
by the malefactors and the nature and location of the wounds also manifest intent to kill. Petitioners use of a gun in
shooting Paradero on the chest and the fact that the bullet hit some of her vital organs of Paradero clearly indicate intent to kill.
With regard to the fourth issue, petitioner claims that his testimony was corroborated by Artiaga, while the testimony of Paradero was
uncorroborated. As such, his testimony deserves credence and the equipoise doctrine should be applied in his favor.[43]
Credibility is weighed not by the number of witnesses but by the quality of their testimonies.[44] Witnesses are to be weighed, not
numbered. Evidence is assessed in terms of quality and not quantity. Therefore, it is not uncommon to reach a conclusion of guilt on
the basis of the testimony of a lone witness. For although the number of witnesses may be considered a factor in the appreciation of
evidence, preponderance is not necessarily on the greatest number, and conviction can still be had on the basis of the credible and
positive testimony of a single witness.[45]
We have earlier found the sole testimony of Paradero to be more credible than that of petitioner, even if the latters testimony was
corroborated by Artiaga on some relevant points. Paraderos account of the incident was clear and consistent. On the other hand,
petitioners narration of the incident, though corroborated by Artiaga, hardly inspires belief, as it does not conform to reason and human
experience. Further, the RTC and CA upheld the sole testimony of Paradero over that of petitioner. They concluded that petitioner
failed to prove his claim of self-defense despite the fact that her testimony was corroborated by Artiaga. Basic is the rule that factual
findings of the trial court deserve great weight and respect especially when affirmed by the appellate court.[46] We found no compelling
reason to disturb the ruling of both courts. Given the foregoing, Paraderostestimony outweighs the testimonies of petitioner
and Artiaga.
Petitioners reliance on the equipoise rule is misplaced. Under the equipoise rule, where the evidence on an issue of fact is in equipoise
(evenly balanced), or there is doubt on which side the evidence preponderates, the party having the burden of proof loses.[47] The
equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations -- one of which is
consistent with the innocence of the accused and the other with his guilt -- in which case the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction.[48]
In the instant case, there are no inculpatory facts and circumstances which are capable of two or more explanations because petitioner
has already admitted shooting Paradero. In other words, there is no more issue as to the innocence or guilt of petitioner. What is left to
be resolved is whether he can be relieved of liability by virtue of the self-defense he pleaded. We have earlier held that petitioner failed
to discharge his burden of proving with clear and convincing evidence the presence of the elements of self-defense. Thus, the
equipoise rule does not apply to this case.
As regards the fifth issue, petitioner avers that the award of actual damages to Paradero in the amount of P110,000.00 was
unwarranted, because her name was not indicated in the hospital and medication receipts presented by the prosecution; that the grant
of exemplary damages was not proper because there was unlawful aggression on the part of Paradero; that the award of P9,000.00 as
unearned income was inappropriate, as there was no basis or evidence to support the same; and that the award of attorneys fees
amounting to P50,000.00 was improper because there was unlawful aggression on the part of Paradero.[49]
To be entitled to an award of actual damages, there must be competent proof of the actual amount of loss. Credence can only be given
to those that are supported by receipts.[50]
Most of the receipts on record[51] were issued in Paraderos name. Although her name was not stated in the other receipts, it appears,
however, that these receipts were issued to Paraderos relatives and that the items covered by the same were purchased
for Paradero. Also, it is a fact that some pharmacy outlets do not specify the name of the purchaser in the receipts they issue, but only
indicate the items sold and their corresponding amounts.
The receipts on record show that Paradero incurred expenses in the amount of P22,426.06. She claimed other expenses, but they are
not supported by receipts or other competent proofs. As such, the amount of actual damages awarded by the RTC and the Court of
Appeals should be reduced from P110,000.00 to P22,426.06. However, we have held that when actual damages proven by receipts
amount to less than P25,000.00, such as in the present case, the award of temperate damages amounting to P25,000.00 is justified in
lieu of actual damages for a lesser amount.[52] This is based on a sound reasoning that it would be anomalous and unfair that the victim
who tried but succeeded in proving actual damages of less than P25,000.00 only would be in a worse situation than another who might
have presented no receipts at all but would be entitled to P25,000.00 temperate damages.[53] Thus, instead of P22,426.06, the amount
of P25,000.00 as temperate damages should be awarded to Paradero.
We agree with petitioner that Paradero is not entitled to exemplary damages, but we differ in his reason for the disallowance
thereof. Exemplary damages may be awarded only when one or more aggravating/qualifying circumstances are alleged in the
information and proved during the trial.[54] In the instant case, no aggravating/qualifying circumstance was alleged in the
information. Hence, the award of exemplary damages by the RTC and the Court of Appeals is unwarranted.
The general rule is that documentary evidence should be presented to substantiate a claim for damages for loss of earning
capacity. As an exception, damages may be awarded in the absence of documentary evidence, provided that there is testimony that
the victim was either (1) self-employed and earning less than the minimum wage under current labor laws, and judicial notice may be
taken of the fact that in victims line of work, no documentary evidence is available; or (2) employed as a daily wage worker earning less
than the minimum wage under current labor laws.[55] In the case under consideration, no documentary evidence was adduced to
support Paraderos claim for loss of earning capacity. Nonetheless, Paradero testified that she derived her income from operating a
small sari-sari store, which she also owned. She also stated that she earned less than P50.00 a day from selling goods in her sari-
sari store.[56] It is a fact and commonly recognized in our country that owners or operators of small sari-sari store, such as Paradero, do
not issue official receipts since the quantity of the items being sold is minimal and these are sold cheap. Thus, Paradero is entitled to
indemnity for loss of earning capacity. As to its proper amount, we agree with the RTC and the Court of Appeals that Paradero is
entitled to P9,000.00. Records[57] show that Paradero underwent treatment and medication, which incapacitated her from working in her
store for a period of 6 months. Hence, the computation is P50.00 multiplied by 180 days or 6 months. Consequently, the amount which
she could have earned during the said period was P9,000.00.
Likewise, the award of attorneys fees in the amount of P50,000.00 is in order[58] because the records show that Paradero incurred such
expenses in hiring a private prosecutor for the instant case.[59]
In his last assigned error, petitioner insists that the Court of Appeals erred in denying his motion for reconsideration without setting forth
the factual and legal bases for the denial.
Art. VIII, Sec. 14 of the Constitution provides that no petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis therefor. This requirement was fully complied with when the Court of
Appeals, in denying reconsideration of its decision, stated in its resolution that it found no reason to change its ruling, because
petitioner had not raised anything new.[60] Thus, its resolution denying petitioners motion for reconsideration states:
For consideration is accused-appellants motion for reconsideration of this Courts decision promulgated on May 25, 2006. Acting on the
motion filed by the accused-appellant, and considering that the same discloses no substantial argument or cogent reason to warrant a
reconsideration or modification of our assailed decision which has already considered, if not squarely ruled upon, the arguments herein
presented, we resolve to deny the motion.
WHEREFORE, there being no cogent reason for us to depart from our questioned findings, we hereby DENY the aforementioned
motion.[61]
We shall now determine the propriety of petitioners conviction for frustrated homicide and the corresponding prison term imposed.
We have held that the crime of frustrated homicide is committed if the following are present: (1) the accused intended to kill his victim,
as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of
timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code is
present.[62]
All of the aforementioned are present and were duly establish in the case at bar. First, petitioners use of a gun and his act of firing it
twice from a distance of 2 meters towards Paradero clearly indicated his intent to kill her. Second, vital organs of Paradero like her liver
and colon were hit by the trajectory of the bullet. Dr. Guardiario testified that the injury on Paraderos colon was fatal and would have
caused her death were it not for the timely medical attention given her. And third, none of the qualifying circumstances for murder was
alleged in the information. Thus, the RTC and the Court of Appeals were correct in convicting petitioner of frustrated homicide.
Petitioner, nonetheless, alleges that he is entitled to the mitigating circumstance of voluntary surrender. We agree on this point with
petitioner. For voluntary surrender to be appreciated as a mitigating circumstance, the following requisites must concur: (1) that the
offender has not been actually arrested; (2) that the offender surrendered himself to a person in authority; and (3) that the surrender
was voluntary.[63] The foregoing requisites are present in the case before us. Petitioner has not been actually arrested. After the
incident, he immediately went to his brothers house and thereupon called via telephone a policeman named SPO2 Quevedo. He told
SPO2 Quevedo that he wanted to surrender. Upon the latters arrival at the house of petitioners brother, petitioner turned himself in
and, thereafter, he was brought to the police station.[64] The prosecution did not rebut the foregoing facts.
The penalty for frustrated homicide, pursuant to Article 250 of the Revised Penal Code, is prision mayor. There being one mitigating
circumstance and no aggravating circumstance, pursuant to Article 64(2) of the Revised Penal Code, the minimum period
of prision mayor should be imposed. Applying the Indeterminate Sentence Law, the range of the penalty is 4 years, 2 months and 1 day
to 6 years of prision correccional as minimum, to 6 years and 1 day to 8 years of prision mayor as maximum. Thus, the RTC and the
Court of Appeals erred in sentencing petitioner to a term of 6 years of prision correccional as minimum to 10 years of prision mayor as
maximum. The proper penalty to be imposed on petitioner is 6 years of prision correccional, as minimum to 8 years of prision mayor, as
maximum.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 00071, dated 25 May 2006, is hereby AFFIRMED with the
following MODIFICATIONS: (1) petitioner Fernando Estabas Mahawan is sentenced to an indeterminate sentence of 6 years
of prision correccional, as minimum to 8 years of prision mayor, as maximum; (2) the amount of P25,000.00 as temperate damages is
awarded to Diosdada Pardero in lieu of the actual damages; and (3) the award of exemplary damages in the amount of P50,000.00 is
deleted.
SO ORDERED.
4. CARDIO-RESPIRATORY PHYSIOLOGY

Head Injury

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Head Injury

Încărcat de

Drepturi de autor:

Formate disponibile

HUMAN BODY EXAMINATION

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAN AVE y TABOBO, accused-appellant.

The Information in Criminal Case No. U-9032, for murder, reads:[2]

CONTRARY to Art. 248 of the Revised Penal Code.

= Explor-lap, Hepatorrhapy, Colorrhapy and Exteriorization of Ileocecal portion,

SIGNIFICANT EXTERNAL FINDINGS:

Ecchymosis both upper eyelids

SIGNIFICANT INTERNAL FINDINGS:

Fracture, circular left parietal bone.

IN CRIMINAL CASE NO. U-9168:

IN CRIMINAL CASE NO. U-9032:

Hence, this automatic review.

The Appellants Brief assigns the following errors:

We affirm the conviction with modifications.

Q: Do you know personally this Dan-Dan Ave?

Q: If he is inside the courtroom, will you please point to him?

Q: After that, what happened next?

A: I think three (3) meters away, sir.

A: I was seated beside Pedro Valenzuela, sir.

A: He was directly behind Pedro Valenzuela, sir.

Q: And how far was Pedro Valenzuela from him?

A: I think it was also three (3) meters away, sir.

Q: And how many explosions did you hear Mr. Witness?

Q: How many explosions did you hear or not?

A: Yes, your Honor.

A: There was, sir.

Q: What was that unusual incident you are referring to?

A: Somebody fired his gun, sir.

Q: What happened when somebody fired his gun?

A: Pedro Valenzuela was shot at the back of his head, sir.

Q: Did you see who shot him?

Q: Who shot him?

A: It was bright because there was light, sir.

Q: Where was that light placed or attached?

A: It was near the house or just above us, sir.

Q: What kind of light was that?

A: It was a Philipps bulb, sir.

A: He was at the back of Pedro Valenzuela, sir.

Q: How far was he?

A: Around 3 meters, sir.

Q: How many times did Dan Ave shoot Pedro Valenzuela?

Q: Where did that gunshot emanate?

A: From Dan Ave, sir.

Q: And where was this shot directed?

A: To Atty. Valenzuela, sir.

A: He was at the back of Pedro Valenzuela and Atty. Valenzuela, sir.

Q: How many times did the accuse(d) fire at Atty. Valenzuela?

A: Only once, sir.

Q: Why not when you were supposed to be facing his direction?

A: It was a long firearm, like this, sir .

Q: After Atty. Valenzuela was shot, what did you do?

So did Rogelio Gacad who testified as follows:[36]

ATTY. AOANAN: (CROSS-EXAMINATION)

A: West side, sir.

A: At my back, sir, which is the east side.

Q: How far were you?

A: Around five to six (5-6) meters, Your Honor.

A: East side of my companions, Your Honor.

A: Yes, Your Honor.

A: When he shot Pepe (Pedro) Valenzuela, Your Honor.

A: Yes, Your Honor.

A: Pepe Valenzuela, Your Honor.

A: Two (2) gun reports, Your Honor.

Q: And then, the third gun report?