G.R. No. L-33604




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-33604-05 October 30, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS G. RUIZ and ALFREDO GUNO, accused appellants. Basilio Fa. Agrvante for appellant Jesus G. Ruiz. Martiniano P. Vivo for appellant Alfredo Guno. Office of the Solicitor General for appellee. FERNANDEZ, J:. This is an automatic review of the decision of the Court of First Instance of Agusan del Norte and Butuan City, Branch 11, in Criminal Cases Nos. 3323 and 3324, the dispositive part of which reads: FOR ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment finding accused Jesus G. Ruiz and Alfredo Guno In Criminal Case No, 3324 GUILTY beyond reasonable doubt of the crime of frustrated homicide, provided for and punished under Art. 249, taken in conjunction with Art. 50 of the Revised Penal Code, and taking into consideration the aggravating circumstance of nighttime which said accused took advantage of in order to co 't the crime of frustrated homicide more easily and with greater impunity as provided for in Art. 14(6), of the same Code, with no mitigating circumstance to offset the same, hereby sentences said accused to suffer the indeterminate penalty of SIX (6) YEARS of prision correccional as minimum to TWELVE (12) YEARS of prision mayor as maximum, with all the accessory penalties provided for by the law, to indemnify offended party, Amado Felias mancomunadumente and in solidum, in the sum of P12,000.00 by way of actual and moral damages, P5,000.00 for expenses of the litigation, all without subsidiary imprisonment in case of insolvency. plus their proportionate share of the costs. The accused being detained are hereby entitled to the FULL period of their preventive imprisonment which shall be deducted from their term of imprisonment if each of them agrees in writing to abide by the disciplinary rules imposed upon convicted prisoners, or shall be credited with FOUR-FIFTHS (4/5) of their period of detention if they do not agree in writing to abide by the rules imposed upon convicted prisoners, all in accordance with R.A. 6127 approved by the President only yesterday, July 15, 1970, In Criminal Case No. 3323 GUILTY beyond reasonable doubt of the crime of murder, provided for and punished under Article 248 of the Revised Penal Code, and taking into consideration the aggravating circumstance 6f nighttime which said accused took advantage of in order to commit the crime of murder more easily and with greater impunity as provided for in Art. 14 (6) of the same Code, with no mitigating circumstance to offset the same, it becomes the painful but imperative duty of the Court to render sentence condemning said accused to suffer the supreme penalty of DEATH by electrocution, to indemnify the heirs of deceased Alfredo Bito, mancomunadumente and in solidum, the sum of P12,000.00 and the further sums of P50,000.00 as actual and moral damages, P25,000.00 as exemplary damages, P10,000.00 for expenses of the litigation, plus their proportionate share of the costs; and In both Criminal Cases Nos. 3323 &- 3724 ACQUITTING accused Melquiades Ruiz from the charges of murder and frustrated murder on reasonable doubt, his guilt in both cases not having been proved beyond moral certainty, with costs de oficio. PER CONSEQUENCES, the bail bond posted by accused Melquiades Ruiz for his temporary liberty in the amount of P129,600.00 is hereby ordered CANCELLED. SO ORDERED. DICTATED in open Court this 16th day of July, 1970 at Butuan City, Philippines. (SGD) MANUEL LOPE ENAGE Judge 1 Jesus G. Ruiz, Alfredo GunoJose Inutan, Meiquiades Ruiz, Romeo Domancas Peter Doe and John Doe were charged in the Court of First Instance of Agusan with murder in the following: 1st Amended I N F O R M A T I O N The undersigned Assistant Provincial Fiscal of Agusan accuses JESUS G. RUIZ ALFREDO GUNOJOSE INUTAN MELQUIADES RUIZ,ROMEO DUMANCAS PETER DOEand JOHN DOE of the crime of MURDER-,committed as follows: That on the, 16th day of December, 1966, at about 9:45 o'clock in the evening, at Barrio Talisay municipality of nasipit province of Agusan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another with treachery and evident premeditation, taking advantage of the night and with superior strength, armed with assorted high caliber weapons, and in contempt of public authority, did then then and there wilfully, unlawfully and feloniously with intent to kill, attack, assault and shoot one Alfredo A. Bito, a sergeant of the Nasipit Police Force, while on his official duty, inflicting upon him, wounds which caused his instantaneous death. Contrary to law. Butuan City, Philippines, January 5, 1967. (SGD) ELMO M. FAMADOR First Assistant Provincial Fiscal 2 The information was docketed as Criminal Case No. 3323. Jesus G. Ruiz Alfredo GunoJose Inutan, Melquiades Ruiz, Romeo Domancas, Peter Doe and John Doe were charged with double frustrated murder in the Court of First Instance of Agusan in the following: FIRST AMEMDED INFORMATION The undersigned Assistant Provincial Fiscal of Agusan, accuses JESUS G. RUIZ, ALFREDO GUNOJOSE INUTAN MELQUIADES RUIZ, ROMEO DUMANCAS PETER DOE & JOHN DOE of the crime of 'DOUBLE FRUSTRATED MURDER', commited as follows: That on or about the 16th day of December, 1966 at about 9:45 o' clock ill ale evening, in the premises and vicinity of Talisay, Nasipit, Agusan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, confabulating and helping one another, with treachery, evident premeditation, taking advantage of night-time, with superior strength, in band, acted together, armed with assorted high caliber weapons, and with the use of a vehicle, to wit: ' International Scout, Pick-up, painted green and bearing plate No. T- 26867 did then and there willfully, unlawfully and feloniously wit intent to kill , attack, assault and critically wounding the said Police Lieutenant Amado A. Felias and Corporal Leonardo G. Galve, both members of the Nasipit Police Force while in the performance of their official duties, thus commencing and performing all the acts, of execution necessary to commit the crime of MURDER but were not able to produce the said crime by reason of causes other than the accused own desistance and that is, by reason of early medical attention on the part of Police Lieutenant Amado A. FelIias and by the reason that Police Corporal Leonardo A. Galve chased and pursued one of the assailants who escaped from the scene of the shooting thus said Corporal Leonardo A. Galve did not suffer any injury. All contrary to law: with the qualifying circumstances of alevosia, the generic aggravating circumstances of known premeditation and other aggravating circumstances to wit: taking advantage of night time with superior strength, in band who have acted together and with the use of a motor vehicle, and in contempt of public authorities. Butuan City, Philippines, January 25, 1967. (SGD) ELMO M. FAMADOR First Assistant Provincial Fiscal 3 The information was docketed as Criminal Case No. 3324. These two criminal cases were prosecuted and tried jointly under their respective amended information's. Before the information's were amended, there were three other accused originally included, namely, Tony ZarcalManuel Timcang and Jesus Maunes Jr., but with leave of the trial court, they were excluded by the fiscal on the ground that the benefit of the second stage of preliminary investigation before the Nasipit Municipal Court was not extended to them. The cases against the two accused Jose Inutan and Romeo Dumancas were dismissed. The former died while detained in the provincial jail of Agusan del Norte while the latter had died even before these cases were actually filed with the trial court. The facts, as stated in the appellee's brief, are: At about 9:30 o'clock in the morning of September 16, 1966, while Sgt. Alfredo Bito, Cpl. Jalop, and Pat. Leonardo Galve, all members of the Nasipit Police, were at the police station (p. 29, tsn, May 31, 1971), accused Jesus G. Ruiz, who is the President of the Victory Stevedoring and Labor Union, commonly known as the VISLU arrived thereat with Ben Abian riding in a pick-up car (pp. 29, 30, tsn, May 31, 1967). Then and there, Jesus G. Ruiz angrily questioned Pat. Galve, to wit: Galve where is that Honda which I donated why do you allow it to be used by civilians?' Galve replied. 'Because it was used by Sgt. Alota (p. 30, tsn, May 31, 1967). Upon hearing this answer, Jesus G. Ruiz said: 'You policemen are all stupid.' Sgt. Bito stood up and inquired of Jesus G. Ruiz, 'What is that?' and Pat. Galve also asked the latter, 'What is that Bay, what are the mistakes of the policemen?' Then Jesus G. Ruiz said, 'Bay, you have nothing to do with this Sgt. Bito, answered Jesus G. Ruiz: 'Why did you say we policemen are stupid, I am angry because I am a policeman also.' Thereafter, Jesus G. Ruiz, in disgust, immediately rode on his pickup and went away (p. 31, tsn, May 31, 1967) crisscrossing the town streets (p. 33, tsn, May 31, 1967) until his pick-up was stopped and checked at the Nasipit CubiCubi Check point which was then guarded by Pat. Iglesias who Inter reported to the police station that Jesus G. Ruiz was mad at him for effecting the check on his (Jesus G. Ruiz's) pick-up car (p. 3, tsn, June 1, 1967). That same night at around eight o'clock, Mrs. Libertad Bito Ruiz was at her home located at Talisay. Nasipit Agusan del Norte (pp. 162 163, tsn, Jan. 31, 1967), preparing something as it was the birthday of her sister, Nenita. Among the people present in her house were her sisters Nenita and Cleotilde Mr. & Mrs. Teofisto Olamit and her younger brother, Sgt. Alfredo Bito, who was with Lt. Amado Felias and CpL Galve of the Nasipit Police force (tsn, pp. 165-166, Jan. 31, 1967; p. 144, Jan. 23, 1967). These three members of the Nasipit Police arrived in Libertad's house in a police patrol jeep they parked on the right side of the road, its rear beside the edge of the hallow blocks near the driveway of the VISLU office located in front of the house of Libertad and partially blocking the driveway (pp. 11-12, tsn, Feb. 24, 1967). Before finishing their supper, Libertad heard the sound of a pick-up stop in front of the VISLU office, (p. 169, tsn, Jan. 31, 1967). Thereafter, she went to the sala and heard the loud voice of her uncle. Jesus G. Ruiz, shouting wrong parking, wrong parking 170, tsn, Jan. 31, 1967). Libertad at once informed Sgt. Bito of what she heard (p. 171, tsn, Jan. 31, 1967) and the latter and his police companions transferred to the sala and continued eating there (id.). At this juncture a cousin of Libertad's husband Melquiades Ruiz arrived tsn p. 141, Jan. 23, 1967; pp. 171-172, Jan. 31, 1967) and told Cpl. Galve to come down as accused Jesus G. Ruiz had something to tell him. Cpl. Galve obliged and went down, followed by Melquiades and Lt. Felias (p. 7, tsn, June 6, 1967). Libertad who, at that moment was by her window near the door opposite the VISLU office (p. 173, tsn, Jan. 31, 1967 ) saw the police patrol jeep along the other side of the street facing towards the poblacion and Jesus G. Ruiz' green Scout International pick-up facing towards the wharf (pp. 173-176, tsn, Jan. 31, 1967). When Lt. Felias and Cpl. Galve reached their parked police patrol jeep, a heated exchange of words ensued between Cpl. Galve and accused Jesus G. Ruiz. The latter asked, 'Why is it that this jeep is parked in front of the VISLU office when this is not a parking place?' Lt. Felias approached Jesus G. Ruiz, patted the latter's shoulder and told him it was not Galve but he who drove the jeep and offered to push the jeep, as it had no starter, if the same obstructed the view of the VISLU office (pp. 7, 8, tsn, June 6, 1967). At this juncture, Sgt. Bito came down the house of his sister Libertad, and admonished accused Jesus G. Ruiz to talk softly and not to shout (Id.). Sgt. Bito told Jesus G. Ruiz that the latter was abusive (abusador) and challenged him to a draw (p. 206, tsn, Nov. 21, 1968). Accused Jesus G. Ruiz replied 'Let us see tomorrow. All of you will be fired out.' (p. 9, tsn, June 6, 1967) and immediately rode on his green pickup and drove to town at fun speed (Id.). After Jesus G. Ruiz had left, Lt. Felias Sgt. Bito and Cpl. Galve pushed the jeep and was able Lo start the same. However, they did not immediately leave for the poblacion because Sgt. Bito had to get his jacket he left in the house of Libertad. While the latter's companions were waiting for Sgt. Bito, with the jeep's motor already running, the accused Jesus G. Ruiz returned from the poblacion with accused Alfredo GunoAntonio ZarcalJesus Maunes Jr., Romeo Dumangcas (p. 11, tsn, June 6, 1967) and Jose Inutan (p. 12, tsn, June 6, 1967) riding on the same green pick-up. and stopped in front of the VISLU office (pp. 10-11, tsn, June 6, 1967). They stepped down from the pick-up, scattered themselves and took their respective positions: Alfredo Gunowent to the Ebarle dilapidated truck near the house of Libertad (p. 14, tsn, June 6, 1967). Dumangcas together with the others went to the VISLU office (Id.,) while Jesus G. Ruiz stayed near the pick-up and shouted: Tell Sgt. Bito that I want to encounter him.' (p. 15, tan, June 6, 1967). At that time Lt. Felias was sitting on the driver's seat of the jeep with Patrolman Galve seated beside him, while Patrolman Granada was leaning on the jeep. All of a sudden, a burst of gun fire came from Alfredo Gunowho was by the dilapidated truck. Sgt. Bito who had just reached the road on his way to the patrol jeep was hit on the leg, Lt. Felias alighted from the left side of the jeep and while going towards the front, he saw Sgt. Bito already limping (p. 16, tsn, June 6, 1967). In the meantime, Patrolman Galve has jumped out of the jeep upon being fired upon by Jose Inutan Galve returned the fire prompting Inutan to flee towards a dark alley with Galve in hot pursuit (pp. 33-36, tsn, June 2, 1967; p. 2 of Exh. '6', p. 16, Rec Gunfires directed towards the patrol jeep were also seen coming from the office of the VISLU and the green pick-up truck (p. 24, tsn, Feb. 24, tsn, Feb. 24, 1967) from where he saw Sgt. Bito drew his pistol and fired, but thereafter the latter ran out of bullets Patrolman Granada threw his revolver to Sgt. Bito, who, however, was not able to catch it. By the time Sgt. Bito turned his face towards Patrolman Granada, he was immediately shot at the mouth by accused Jesus G. Ruiz (p. 26, tsn, Feb. 24, 1967). killing him (Sgt. Bito) on the spot (p. 27. tsn. Feb. 24, 1967). thereatter accused Jesus G. Ruiz nudged and prodded with his right foot Sgt. Bito's body and after finding him already dead, he (Jesus G. Ruiz) moved backward (p. 29, tsn, Feb. 24, 1967). With the lights comming from the electric lamp post of the VISLU office, as well as from Libertad's home and the other houses, Lt. Felias saw accused Jesus G. Ruiz fired at him with a Thompson submachinegun that hit both of his thighs (p. 17, tsn, June 6, 1967). When he fell, he saw Patrolman Granada crawling under the jeep (p. 18, tsn, June 6, 1967) and called the latter for help (tsn p. 30, Feb. 24, 1967); p. 19, June 6, 1967). Patrolman granada went to the succor of Lt. Felias and tried to load him in the patrol jeep, but in the midst of gunfire coming from the VISLU office, they were obliged to take cover (p. 3 1, tsn, Feb 24, 1967). After the firing subsided, Patrolman Granada shouted for help. Jesus G. Ruiz approached them and Pat Granada pleaded with Jesus G. Ruiz not to finish Lt. Felias who was then already unconscious (p. 32, tsn, Feb. 24, 1967). At this, Jesus G. Ruiz returned to his green pick-up (tsn, p. 33, Feb. 24, 1967; p. 214, Nov. 21, 1968) and together with the wounded Inutan, he hurriedly drove to the Butuan City Hospital (p. 216, tsn, Nov. 21, 1968). Civilians came later and helped Patrolman Granada load the unconscious Lt. Felias in the jeep. They proceeded to the police station leaving behind Sgt. Bito lying on the very spot where he was killed (p. 34, tsn, Feb. 24, 1967). Upon reaching the police station, Patrolman Granada reported the incident to the police guard who advise him to take Lt. Felias to Butuan City for immediate treatment (pp. 34, 35, tsn, Feb. 24, 1967). At CubI CubI along the way to Butuan City, their jeep was bumped by a green painted vehicle which not only did not stop but also tired upon them (pp. 35, 36, tsn, Feb. 24, 196'1) hitting the left arm of Manuel Hao who was then holding Lt. Felias in his arms and causing the jeep to fall on a ditch (p. 37, tsn, Feb. 24, 1967). Fortunately, the jeep of Sinforoso Ayuma was passing by on its way to Butuan City. They loaded Lt. Felias in Ayuma's jeep that brought him to Butuan City (p. 38, tsn, Feb. 24, 1967). Lt. Felias was confined at the Butuan City Hospital from December 17 to 31, 1966 (p. 20, tsn, June 6, 1967) where he was treated to the following injuries: 1 & 8 - Gunshot wounds, thru and thru left thigh subcutaneous 3 & 4 - Gunshot wounds, thru and thru right thigh with fracture of the femur at about its middle Exhibit 'U' p. 17, Rec.) Thereafter he was given further treatment at the National Orthopedic Hospital and was released only on February 8, 1967 when he was placed on plaster cast (Id.). According to Dr. Francisco Yazon who physically examined Lt. Felias at the Butuan City Hospital, the latter would have died from his wounds were it not for the timely medical intervention, due to (a) infection of the fractured bones and blood poisoning due to that infection; or (b) loss of blood (pp. 41, 42, tsn, June 9, 1967). As per post mortem findings by Dr. Lydia San Pedro, Municipal Health Officer of Nasipit, Agusan, the deceased Sgt. Alfredo A. Bito sustained the following injuries: FINDINGS: EXTERNAL PHYSICAL FINDINGS A. Circular wound about two (2) cm. in diameter with contused edges at the medial surface of the leg piercing the gastrochemius muscle about five (5) inches below the knee. Slit like wound about four (4) cm. length posterior surface of the gastrochemius muscle with slight evertion of the edges. B. Oval wound below the nasal septum about 1-1/2 cm. length with inverted edges. All upper teeth with alveolar arch destroyed and palatine bone (hard and soft palate). four (4) teeth and all let lower molars were removed from their sockets. Lacerated wound 1-1/2 inches at the left parietal bone. REMARKS: 'Time when Examined: 1:00 A.M. December 17, 1966 Estimated Time of Death 9:00 A.M. Dec. 16, 1966 STATE OR CONDITION OF THE BODY: RIGOR MORTIS Cause of Death: Cerebral hemorrhage Internal Findings: Not Performed (Ex h. 'L ; P. 26, Rec)' 4 According to the lower court, the accused Jesus G. Ruiz testified to the following: ... that Bito answered that he was abusing and challenged him to a draw; that their distance from each other was more than two meters at this very moment; that he answered him that he will not challenge Bito to a draw because he is a policeman; however, he will meet him the next day in front of the office of the mayor and the police if he wants a draw; that his purpose was to deter him in Bito's desire to fight him to a draw; that he turned his back on Bito and drove his pick-up and went to his house arriving there at past 8:30 in the evening-, that he went up and told his wife about what happened that his wife laughted and remarked: 'is there a policeman who will challenge you?'; that he stayed in his house sitting for almost an hour; that he noticed that there were policemen coming from the jeep; that he rode on his pick-up for Talisay passing by Eugene Restaurant at about 9:30 P.M.; that upon arriving at Talisay for the second time that very night, he saw the police jeep moved already from where it was parked by the policemen that his purpose in going to Talisay was to verify the relief, the night shift of VISLU laborers at 10:00 o'clock then loading on a Japanese boat; that the policemen he saw were Felias sitting at the rear of the jeep, Galve by the side of the jeep, and Bito beside Galve; that he saw Granada after he parked his pick-up in front of the house of Luis Faelnar and when he went down his pick-up, he was met by Granada who told him the jeep was already moved forward; that it was while he was conversing with Granada for a few minutes that he heard a loud voice challenging him to a draw; that at that moment, he moved backward with his left foot so he would be in a position to face his challenger, but when he moved backward, he heard a shot; that the gunshot came from the rear of the police patrol jeep; that he did not see Felias Galve and Bito, but the gunfire came from behind the patrol jeep; that he sought cover by hitting the ground; that after the first shot, came several shots. So he continued crawling on the ground in order to escape from the gunfire; the he slid because the ground was slippery and sandy; that the continued rolling towards his pick-up; that the several shots that followed the first shot came from the patrol jeep; that when he reached his pick-up, he turned to the front, crawled to the front of his pick-up; that he did not hear any shots anymore; that he stood and observed the situation from where he could not be seen from where the shots came from. Thereafter, shots rang again. Fearing he was in danger, he immediately ran in a stooping position passing by the side of the VISLU office to its back. He went to the back of his office because the wall at the back is cemented. He thought of reporting the incident to the authorities, and was thinking of escaping at the shots still so he thought of going back to his pick-up. He went running back to his pick-up, again in a stooping position. Upon reaching his pick-up, he opened the door, started immediately its motor, and drove away towards the wharf; that on the night of the incident he had with him a .38 cat revolver, Smith & Wesson. During the shooting, he held his revolver which was in its holster to prevent it from falling-, that he does not know where the Gunfires came from; he does not know who was being fired upon; that he knows Jose Inutan that he remembers having met him on the night of December 16, 1966; that after he drove his pick-up to a distance of about ten meters; somebody tapped the body of his pick- up; that he asked who it was; that the answer was Tokloy He said he was wounded and would like me to bring him to the hospital; that he allowed Inutan to ride with him and proceeded to Butuan City. He drive his pick-up straight to the PC barracks and stopped in front of the guardhouse. He asked the guard if Capt. Collatio was in but the Guard replied: 'No, he is at the Elite Restaurant.' So the witness asked the guard that he be, provided with a PC guard so that Capt. Collatio will believe him. Upon remembering that he was not able to bring with him his permit to carry a firearm, he left his firearm at the guardhouse; that was the firearm he carried with him on the night of the incident; that he deposited the same with Jose Cabillo of the P.C that said PC examined the number of rounds and gave him a receipt for it, Exhibit 10; that he drove to the Elite Restaurant with the P.C that the PC went upstairs and he waited downstairs; that he met Capt. Collado that he told Capt. Collatio of the incident at Talisay; that they went back to the PC headquarters; that upon arrival, Capt. Collado ordered that the bugle be sounded; that the men assembled and Edmundo Espiragoza was ordered to take him to the guardhouse; that he wanted to go to Talisay with Capt. Collado, but the latter told him to stay; that he stayed at the guardhouse from the evening of December 16, to 28, 1966; Chat on December 17., 1966, he was investigated relative to the Talisay incident; ... 5 Accused, Alfredo Gunoon the other hand, testified as follows: ...that on December 16, 1966, after 3:30 PM he went home to the house of his elder brother; that Eliazar Esparagoza brought him to the other wharf near the government wharf; that they took Eliazar's jeep; that they stayed for about twenty minutes there at a small store owned by a certain Fely that from there, he went home; that Tiburcio Gunolives at and is the owner of the Eugene Restaurant; that they took supper there and went to the dance at Talisay near the house of Joe Jimenez; that while waiting for a tricycle, a green pick-up passed by owned by accused Jesus G. Ruiz; that he was driving it; that he saw, among others inside the pick-up, Jesus Maunes Jr.; that upon knowing it was going to Talisay, and upon being invited by Maunes Jr., he rode on it at the rear; that Maunes Jr. and he were at the rear; that there were three persons in front, Dumangcas and Inutan among others; that they drove towards Talisay; that the pick-up stopped at the VISLU office; that he heard somebody say: 'By golly, Bay, they are coming back'; that he saw two men running towards him; that he ran towards Pisto Olamits house; that he heard a shot; that he was frightened so he headed for the canal of the Veneer Plant; that Esiabon a security guard of the Veneer Plant, asked: What is that? ; that he Identified himself by saying: 'Bay, Eslabon and asked where the faucet was because he wanted to wash; that he went home after washing himself; that the next morning he was arrested by the police; that his affidavit was taken by Sgt. Pates of the P.C Chat when he was shown to Mrs. Libertad Bito Ruiz, she said 'It seems that he is the one. ; that he was placed in jail in Nasipit; that he was asked by Libertad to testify against accused Jesus G. Ruiz; otherwise, she will implicate him; ... that the PC took him to the PC barracks where his second affidavit was taken again by PC Sgt. Pates that he did not sign his second affidavit because the PC did not let him sign it because they crumpled it as the contents were the same as his first affidavit taken at Nasipit; ... 6 The accused Jesus G. Ruiz and the accused Alfredo Gunowere represented by two different counsels de oficio before this Court. Counsel de oficio for the accused Jesus G. Ruiz assigns the following errors: I THE LOWER COURT EERED IN GIVING CREDENCE TO THE INHERENTLY INCREDIBLE AND UNCORROBORATED EVIDENCE OF THE PROSECUTION I I THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT. 7 The counsel de oficio for accused Alfredo Gunocontends that the trial court committed the following errors: FIRST ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN FINDING THAT APPELLANT GUNOSHOT AT AND HIT SGT. ALFREDO BITO IN THE LEG. SECOND ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN DISREGARDING THE TESTIMONY OF APPELLANT GUNOAND HIS WITNESS AND IN RELYING SOLELY ON THE BIASED, IMPROBABLE, UNBELIEVABLE TESTIMONY OF THE PROSECUTION WITNESSES. THIRD ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN HOLDING THAT THERE EXISTED A CONSPIRACY BETWEEN APPELLANT GUNOAND APPELLANT JESUS R. RUIZ, AND IN FURTHER HOLDING APPELLANT GUNOLIABLE FOR ACTS ALLEGEDLY PERFORMED AND INJURIES INFLICTED BY APPELLANT JESUS RUIZ. FOURTH ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN ALLOWING ITSELF TO BE SWAYED IN RENDERING THE DECISION UNDER REVIEW BY ITS UNCONCEALED PREJUDICE AND BIAS AGAINST APPELLANT GUNOMADE MANIFEST BOTH BY HIS ACTUATIONS DURING THE TRIAL AND THE DECISION ITSELF. FIFTH ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN NOT ACQUITTING APPELLANT GUNO SIXTH ASSIGNMENT OF ERROR ON THE ASSUMPTION, ARGUENDO, THAT THERE WAS GROUND FOR CONVICTING APPELLANT GUNOTHE COURT A QUO ERRED IN NOT HOLDING THAT HE IS CRIMINALLY LIABLE ONLY IN CRIMINAL CASE NO. 3323, WHERE HE IS ALLEGED TO HAVE PERSONALLY INFLICTED A LEG INJURY UPON ALFREDO BITO, BUT NOT IN CRIMINAL CASE NO. 3324 BECAUSE HE INFLICTED NO INJURIES UPON AMADO Felias AND LEONARDO GALVE, AND IN FURTHER FAILING TO HOLD THAT APPELLANT' GUNOCOMMITTED ONLY THE CRIME OF PHYSICAL INJURIES INSTEAD OF MURDER. SEVENTH ASSIGNMENT OF ERROR ON THE ASSUMPTION, ARGUENDO, THAT APPELLANT ALFREDO GUNOCOULD BE HELD LIABLE. FOR THE DEATH OF ALFREDO BITO IN CRIMINAL CASE NO. 3323 ALTHOUGH HE DID NOT INFLICT MORTAL WOUNDS UPON BITO, THE COURT A QUO ERRED IN HOLDING THAT THE KILLING OF BITO WAS MURDER INSTEAD OF HOMICIDE MERELY. EIGHT ASSIGNMENT OF ERROR ON THE ASSUMPTION, ARGUENDO, THAT THERE WAS GROUND FOR FINDING APPELLANT GUNOLIABLE FOR THE INJURIES INFLICTED UPON AMADO FELIAS AND LEONARDO GALVE BY PERSONS OTHER THAN SAID APPELLANT, THE COURT A QUO ERRED IN HOLDING THAT SAID INJURIES CONSTITUTED THE CRIME OF FRUSTRATED HOMICIDE, INSTEAD OF PHYSICAL INJURIES ONLY. 8 The assingment of errors of the accused Jesus G. Ruiz will be discussed first. Contrary to the contention of the accused Jesus G. Ruiz, the lower court did not err in giving credence to the evidence of the prosecution. There is nothing incredible in the testimony of prosecution witness Libertad Bito Ruiz in so far as it points to the accused Jesus G. Ruiz as the person who shot her younger brother, Sgt.. Alfredo Bito. She testified on direct examination thus: A And when I saw my younger brother (referring to Sgt. Alfredo Bito) turning his head towards his right, I saw my uncle Jesus G. Ruiz went near and fired at my younger brother. (p. 191, tsn, Jan. 31, 1967) x x x x x x x x x Q At this point, after you saw the accused Jesus G. Ruiz fire at your younger brother, Sgt. Alfredo Vito (Bito), you were still in the window? A Yes, sir. Q Were you still looking toward the street? A Yes, sir. x x x x x x x x x Q You said that you were still in the window. Where were you looking (to what direction) after you saw the accused, Jesus G. Ruiz? A I was still looking at my younger brother, Sgt. Vito (Bito). Q Since you were still looking at that particular direction, will you tell the Court what did you see, if any? (p. 4, tsn, Feb. 1, 1967) 'A Uncle Jesus G. Ruiz kicked the left knee of Sgt. Vito (Bito) by his right foot (p. 6, tsn, Feb. 1, 1967) ' " On cross-examination, Libertad declared as follows: Q When you saw Jesus G. Ruiz, to what direction was he directing his fire? A On the face of my brother. Q Did he have his arm automatically stretched when he fired? A Quite bent. Q And how many times did he fire? A When he was near Sgt. Bito, I heard only one shot. (p. 53, tan, Feb. 21, 1967) xxx xxx xxx Q And afterwards, what happend to Sgt. Bito? A He slumped down. Q After Sgt.Bito slumped down,what else did Jesus Ruiz do? A He went near Sgt. Bito and kicked with his right foot the left knee of my brother. (p. 55, tsn, Feb. 21, 1967) 9 The foregoing testimony of Libertad that the accused Jesus G. Ruiz fired at the face of Sgt. Bito is corroborated by Pat. Granada who declared thus: Q What happened next after you went under the jeep? A Sgt. Bito draw his pistol and fired. Q And what happened next? A After he fired because he has no more bullet, he threw his pistol to me. Q And what did he do? A He told me he has no more bullet, give me your revolver. Q When I threw my revolver to him he was not able to catch it and then when he faced to me, when he turned his face to me, he was immediately shot by Jesus G. Ruiz at the mouth. (p. 26, tsn, Feb. 24, 1967)'10 The testimonies of Libertad Bito Ruiz and Pat. Granada that the accused Jesus G. Ruiz fired the fatal shot at Sgt. Bito is confirmed by the physical facts as reflected in the post mortem report of Dr. Lydia San Pedro who found that among the injuries sustained by the deceased Sgt. Bito is an "oval wound below the nasal system about 1-1/2 cm. length with inverted edges" 11 which is within the area of the face. Dr. San Pedro testified that judging from the nature and characteristic of the wound found on the upper lip near the nose (nasal system), it is a bullet wound. 12 Likewise, the testimony of Libertad that the accused Jesus G. Ruiz was near Sgt. Bito when the former fired upon the latter is confirmed by the presence of the "blackened area in the nasal system" 13 of the deceased. According to Dr. Lydia San Pedro, this is indicative of the short distance of not more than 24 inches between the muzzle of the gun used and the deceased. 14 The contention of the accused Jesus G. Ruiz that the testimonies of Patrolman Galve and Libertad show that the real perpetrators of the killing of Sgt. Bito are Alfredo Gunoand Romeo Dumancas fails to take into account the physical facts as regards the nature, characteristics and locations of the wounds sustained by the victim. Furthermore, there is nothing in Pat. Galve's entire testimony that would implicate Romeo Dumancas in the killing of Sgt. Bito. While it is true that Libertad testified that Alfredo Gunoand Romeo Dumancas also fired at Sgt. Bito, they could not have caused the fatal wound sustained by Sgt. Bito. Gunocould have only hit the leg of Sgt. Bito who was seen limping immediately after the first shot fired at him by said GunoOn the other hand, Romeo Dumancas only fired towards Sgt. Bito and also towards the jeep which was more than five (5) meters. Therefore, Dumancas could not have been responsible for the fatal wound which was caused by a bullet fired from a gun at close range or at a distance of not more than 24 inches. In order to discredit Libertad, the accused Jesus G. Ruiz brands her as a biased witness because of her relationship with the victim.15 The fact that Libertad is the sister of the deceased Sgt. Bito does not necessarily make her a biased witness. The prevailing jurisprudence on the matter is that mere relationship of the prosecution witnesses to the victim does not necessarily vitiate their otherwise credible testimonies 16 nor does it impair their positive and clear testimonies. 17 Besides, Libertad is also related to the accused Jesus G. Ruiz, the former being married to the latter's nephew, Manuel Ruiz. Moreover, Libertad had been working in the VISLU office for several years. Her continued employment with VISLU must have been with the blessings of her uncle, the accused Ruiz, its perennial president. Hence Libertad was not likely to testify falsely against the accused Ruiz. The prosecution witness, Pat. Granada, had no motive to testify falsely against the accused Jesus G. Ruiz. Pat. Granada was the friend of Jesus G. Ruiz. Pat. Granada had been allowed by Ruiz to stay in the latter's house for about two months. There is no merit in the contention that Sgt. Bito sustained only one bullet wound.18 Dr. Lydia San Pedro stated in her medical certificate (Exhibit "L") and declared that the deceased Bito, sustained at least two bullet wounds of entry, one on the left leg below the knee and another oval wound below the nasal system about 1-1/2 centimeters in length with inverted edges.19 The argument of the counsel of the accused, Jesus G. Ruiz, that the prosecution failed to present any other witness to corroborate the direct participation of accused Jesus G. Ruiz in the killing of Sgt. Bito and the wounding of Lt. Felias, 20 merits scant consideration because: (1) Libertad's testimony that Jesus G. Ruiz fired at Sgt. Bito is not only corroborated by the testimony of Pat. Granada, but also by that of witness Antonio Zarca 21 and (2) Lt. Felias testified that he saw the accused Jesus G. Ruiz fire and hit him on both thighs 22 and this is partly corroborated by Pat. Granada who declared, among others, that he saw gunfire from the green pick-up where Jesus G. Ruiz was and which was directed at the police jeep where Lt. Felias was sitting behind its steering wheel. In an effort to minimize the penalty for the crimes committed by the accused, Jesus G. Ruiz, the defense claims that the lower court failed to appreciate in favor of Ruiz the mitigating circumstances of (1) voluntary surrender, (2) drunkenness which is not habitual and (3) having acted in vindication of a grave offense. 23 This Court finds that the first two alleged mitigating circumstances cannot be appreciated in favor of said accused. There is nothing in the affidavit and testimony of Jesus G. Ruiz that he intended to surrender when he went to the PC headquarters late in the evening of December 16, 1966. The Idea of surrender must have been far from his mind because according to him he just reported the shooting incident to prevent further bloodshed. 24 As observed by this Court in the case of People v. Regales: 25 ... appellant did not go to the PC headquarters after the shooting to surrender but to report the incident. Indeed he never evinced any desire to own the responsibility for the killing of the deceased. The defense claims that the accused Jesus G. Ruiz was intoxicated at the time of the shooting incident because he was allegedly drinking Tanduay liquor. He even offered prosecution witness Antonio Zareal to join him. This conclusion is without any basis. Not all persons who drink Tanduay liquor get drunk. In fact, prosecution witness Zarcal did not testify that Jesus G. Ruiz was drunk or intoxicated. The record has no evidence that shows that the liquor taken by Jesus G. Ruiz was of such quantity as to have blurred his reason and deprived him of self control. Said circumstance must first be established before drunkenness may be considered as a mitigating circumstance. Although the last paragraph of Art. 15, Revised Penal Code. fails to provide for the degree of intoxication needed to mitigate the penalty for an offense, it should be such an intoxication that would diminish the agent's capacity to know the injustice of his acts, and his will to act accordingly. 26 In the case at bar, the behavior of accused Jesus G. Ruiz, from the time he was seen at his house in the poblacion by prosecution witness Zarcaldrinking Tanduay liquor up to the shooting incident, did not show that he was in such a sign of intoxication that would mitigate his liability. It is significant to note that the defense only interposed on appeal the alleged mitigating circumstance of drunkenness of Jesus G. Ruiz. Said accused never claimed during the trial that he was drunk at any time during the shooting incident in question. There is nothing in the testimony of accused Jesus G. Ruiz to show that he was drunk or intoxicated during the said incident. However, this Court finds that the mitigating circumstance of having acted in vindication of a grave offense should be appreciated in favor of the accused Ruiz in so far as the killing of Sgt. Bito is concerned. The lower Court made the following findings and conclusions. 14. That accused Jesus G. Ruiz and Bito were Caught in an argument over the parking of the jeep that caused Jesus Ruiz to leave the place hurriedly in his free pick-up towards town; (p. 70, Sentence; p. 641, Rec.) ... But as admitted by both the prosecution and the defense, it ended up in an argument between accused Jesus G. Ruiz and Bito where the prosecution contends that Bito advised accused Jesus G. Ruiz to talk softly, and not to shout and where accused Jesus G. Ruiz contends Bito asked him what he wanted, called him (abusador) culminating in his being challenged by Bito to a draw. If a balance of probabilities is struck, the only rational conclusion consistent with the natural order of things and the experience of man, is that accused Jesus G. Ruiz must have felt insulted, if not slighted if not hurt, if not deeply offended, inconvenienced as he was by the jeep and then ending up only to be called (abusador) and challenged to a draw by Bito (Exh. X-12), which doubtless, fired in accused Jesus G. Ruiz a desire to get even with Bito. (pp, 81-82, Sentence, pp. 652653, rec.) The evidence shows beyond moral certainty that accused Jesus G. Ruiz deeply offended as he was then called (abusador) and challenged by Bito to a draw, came minutes later to Talisay with deceased Inutan and Dumangcas and accused Gutio with Zarcaland Mauzies Jr. ... (pp. 101-102, Sentence; pp. 672-673, rec. ) 27 The question of whether or not a certain personal offense is grave is dependent upon such factors as the social standing of the person, the place, and the Lime when the insult was made. In the case at bar, the accused Ruiz was the President of the factory Stevedoring and Labor Union VISLU Considering that he was called an (abusador) and challenged to a draw by the deceased, Sgt. Bito, in the presence of Lt. Felias and Cpl. Galve and right in front of his own office building where his laborers were then supposed to be reporting preparatory to a loading job, the act of the accused Ruiz in subsequently killing Sgt. Bito is attended by the mitigating circumstance of having acted in vindication of a grave offense. This Court will now discuss the errors assigned by the accused, Alfredo Guno. Anent the first error assigned, the accused Alfredo Gunocontends that: ...The Court a quo, therefore, erred grievously when it concluded that, because appellant Gunoran away from the two men who Are running toward him that night, he was guilty of shooting at. and hitting Sgt. Bitos leg. 28 The accused Alfredo Gunosubmits that the foregoing conclusion is based on mere suspicion. This contention proceeds from the erroneous assumption that the aforequoted portion of the decision constitutes the sole basis of the lower court in convicting the accused GunoThe aforequoted observations are mere justifications for the court's refusal to believe accused Gunos pretensions that he did not have prior knowledge about the forhcoming showdown between them and Sgt. Bito and his police companions. The conviction of Alfredo Gunois anchored on the strong evidence adduced pointing to him as the person who shot Sgt. Bito on the left leg. It is not only the testimony of Mrs. Libertad Bito Ruiz which proves this point. The corroborative testimonies of Panfilo Granada, 29 Lt. Amado FeIias 30 and Manuel Timcang 31 stand assailed Therefore, the allegation of the accused Gunothat Mrs. Libertad Bito Ruiz could not have possibly seen accused Gunofire at Sgt. Bito because of the presence of the manzanita tree which obstructed her view, as testified to by Collado, cannot affect the conclusion of the lower court. As regards the second error assigned, the accused Gunoattempts to discredit the testimony of witness Libertad Bito Ruiz by invoking the maxim or rule of falsus in unos falsus in omnibus. It is pointed out that a portion of her testimony implicating the accused Melquiades Ruiz was disregarded by the lower court because Libertad "was testifying more from emotion than what she actually saw from the window of her house in the semi--darkness of the night of the incident, specially if we are to remember that Bito was her younger brother. " The cited maxim deals only with the weight of evidence and is not a positive rule of law or of universal application." It should not be applied to portions of the testimony corroborated by other evidence, particularly where the false portions could be innocent takes Furthermore, the rule falsus in unos falsus in omnibus is not mandatory but merely sanctions a disregard of the testimony of a witness if the circumstances so warrant. For the complete disregard of all the testimony of witness on this ground, his testimony must have been false as to a material point, and that witness must have conscious and deliberate intention to falsify a material point. 34 In the case at bar, the lower court disregarded that portion of Libertad's testimony implicating Melquiades Ruiz because she was then testifying more from emotion so that it cannot be said that she consciously and deliberately intended to falsify a material point. Hence, her entire testimony need not be disregarded. Her testimony that accused Gunoshot Sgt. Bito at the left leg is sufficiently corroborated by the testimonies of Pat. Panfilo Granada, Lt. Amador Felias and Manuel Tim cang The contention of the accused Gunothat the prosecution witnesses Pat. Granada, Pat. Galve and Lt. Felias are biased because they are the brothers in arms of Sgt. Bito is untenable. Testimonies of interested witnesses are not necessarily biased and incredible, for on the contrary, it would be unnatural for such persons interested in vindicating the crime to impute the same to any person other than those responsible. Under the third assesment of error, the accused Gunoassails the lower court's finding of conspiracy among Gunoand Ruiz and contends that inasmuch as the proportion evidence shows that the accused Gunoboarded the pick-up at Eugene restaurant without any conversation having taken place between them and had no chance to confer on the way to Talisay, there could be no possible meeting of the minds between them to constitute conspiracy; 35 that there was no time to reach an agreement to commit the crime since there was a very short span of time between the time when the accused Ruiz was deeply offended as he was called (abusador) and challenged by Bito to a draw and the time when accused Ruiz came back to Talisay with Inutan and Dumancas and accused Gunowith Zarcaland Maunes Jr.; 36 and that the accused Gunowas only a chance passenger in the pick-up, bemuse he was going to a party and he took advantage of the only available transportation then. 37 The contentions of accused Gunoare not meritorious. It is a well- settled rule that conspiracy need not be proved by direct evidence and may be deduced from the mode and manner in which the offense was perpetrated. 38 The finding that there was conspiracy between the two accused Ruiz and Gunowas proven by the following : 1. In their boarding together of accused Jesus G.Ruiz' pickup minutes after Jesus G. Ruiz admitted he was calm by Bito (abusador) was then and there challenged by Bito to a draw; 2. In their proceeding immediately to Talisay where Bito was; 3. In their alighting immediately from the pick-up upon arrival at Talisay and their taking of their respective positions in the scene of the crime; 4. In their firing simultaneously and at will at Felias Bito and Galve; 5. In their getting away in the same pick-up of accused Jesus G. Ruiz after their shooting of Felias Bito and Galve, except crossing the canal breast deep with sea water behind the house of Libertad; 6. In accused Jesus G. Ruiz' bringing the wounded Inutan to the hospital for treatment right after the incident; 7. In their pattern of feigning total ignorance as to who were shooting at when on the night of the incident; and 8. In the unexplained failure of Inutan to file, during his lifetime, the proper criminal complaint against Felias and Galve, who together with deceased Bito, shot him and wounded him by his buttocks 39 This Court finds no merit in the contention of the accused Gunothat there could be no conspiracy because there was very little time for them to have reached the agreement to commit the crime. The prevailing rule is that "unlike in evident premeditation, where a sufficient time must elapse to afford full opportunity for meditation and reflection and for hes perpetrators to deliberate on the consequences of their intended deed 40 conspiracy arises on the very instant the plotters prosecution had not moved for the striking out of such testimony (t.s.n., Vol. III, p. 601). (4) The Court A QUO examined appellant Gunoextensively (t.s.n., Vol. III, pp. 608-612), and when defense counsel resumed his direct questions, following the line of the Court's interrogation on the same matter, the Court a quo, in sustaining the Fiscal's objection, stated: The Court's privilege is not of the counsel Reform. (tsn Vol. III, p. 6-12). 41 The contention of the accused Gunois without merit because, as stated by the appellee: 1. The incidents cited by appellant Guno(pp.40,41,Brief or Appellant Alfredo Gunoare merely innocuous and isolated remarks from the lower court during the long drawn out trial of these two criminal cases. They were brought about by the lower court's obvious desire to expedite the proceedings with regard to the proper presentation of evidence by both parties. 2. In the interest of justice,courts have discretion to order the striking out of any portion of a witness' testimony if the same is not responsive to the question propounded or touched on matters that are either immaterial, impertinent or irrelevant. Hence, no prejudice nor bias on the part of the lower court may be feed out of a short portion of appellant Gunos direct testimony (t.s.n., Vol. III, p. 601). 3. As to the lower court's extensive examination of appellant Guno(t.s.n., Vol. III, pp. 608-612), there is nothing objectionable about it. There is authority to the effect that the active participation taken by a judge in the conduct of a trial motivated by a desire to expedite the proceedings and direct the course thereof in accordance with the real issues involved should not be taken as interest nor partiahty nor hostility on the part of the judge (Ventura vs. Yatco, L-11223, March 16, 1959). 4. Significantly, while appellant Gunoharps on the isolated remarks of the presiding judge which to him appear to be prejudicial and biased (which of course this representation does not admit as could be expected, said appellant chose to ignore the other remarks and or rulings of the lower court which are favorable to his cause. agree, expressly or impliedly, to commit the felony and forthwith decide to pursue it." The above-enumerated eight circumstances prove the presence of conspiracy. Since conspiracy has been established, the rule is every conspirator is responsible for the acts of the others in the furtherance of conspiracy and are liable as co-principals. 42 Therefore, although the shot fired by the accused Gunoat Sgt. Bito only hit the latter's left leg, the former is still liable as co-principal for the death of said Sgt. Bito. Also, the accused Gunoshould be held liable as co-principal for the injuries inflicted upon Amado Felias and Leonardo Galve. Regarding the fourth assignment of error, the accused Gunocontends that the lower court erred in allowing itself to be swayed in rendering the decision under review by its prejudice and bias against him. The accused Gunocited the following incidents to prove his contention (1) When Libertad Bito Ruiz, prosecution witness, was under direct examination and appeared to be having some difficulty in answering the Fiscal's question, the Court A QUO told the Fiscal: Reform the question to suit the answer. (t.s.n., Vol. I, pp. 187- 188) (2) When appellant Gunowas testifying in his own behalf and, on direct examination, was being asked about the co-accused Dumangcas, who had already died, the Court, without giving counsel a chance to explain the materiality of the question, sustained the Fiscal's objection, saying: Do not show concern for Romming Dumangcas; he is dead now. Concentrate your fire on your client; he is still breathing.' (t.s.n., Vol. III, pp. 597-598). (3) The Court a qou motu propio ordered the striking out of a portion of appellant Gunos direct testimony even though the pro— 5. We agree that the proposition that judges should refrain from showing partiality to one party and hostility to another. This does not mean however., that he should keep mum throughout the trial and allow the parties to ask questions even if they are improper, irrelevant and immaterial to the issues involved. If trials are to be expedited, judges should take a leading part by directing counsel to submit evidence on facts, by asking clarifying questions and by showing an interest in its speedy and fair termination. Unless they do, the speedy administration of justice which is the aim of the government and of the people cannot be attained., 43 The foregoing discussion also disposes of the fifth and sixth errors assigned. The contention of the accused Gunounder the seventh error assigned that the killing of Sgt. Bito was not murder but only homicide on the ground that there was neither treachery or evident premeditation is wen taken. After analyzing the testimonies of the witnesses for the prosecution and the defense, the trial court found that the shooting incident took place in the following manner: TO begin with, the whole incident on the night of December 16, 1966 started with the partied blocking by Felias Bito and Galve of their police patrol jeep by the driveway of the VISLU office. This prompted accused Jesus G. Ruiz to verify as to who drove the same and to ask that the jeep be moved forward. But as admitted by both the prosecution and the defense it ended-up in an argument be accused Jesus G. Ruiz and Bito where the p etition contends that Bito and accused Jesus G. Ruiz to talk softly, and not to shout, and where accused Jesus G. Ruiz contends Bito asked him what he wanted, called "abusador" ting in his being by Bito to a draw. If a of probabilities is struck, the only rational conclusion consistent with the order of things and the experience of man, is that accused Jews G. Ruiz must have felt insulted, if not slighted if not hurt, if not deeply offended. inconvenienced as he was by the partial blocking of his driveway by the jeep and then ending up only po be called (abusador) and to a draw by Bito (Exhibit X-12), which, doubtless, fired in accused Jesus G. Ruiz a desire to get even with Bito. BUT finding himself alone before Felias Bito and Galve, who were armed as they were supposed to be being police officers, could not make a move then. This prompted accused Jesus G. Ruiz to leave hurriedly in his green pick-up for town, and minutes later came back with deceased Inutan and Dumangcas, accused GunoZarcaland Maunes Jr. Be it remembered that accused Jesus G. Ruiz left Talisay after being called (abusador) by Bito, and to top it all, after he was challenged by Bito to a draw, as testified to by him So, the only rational conclusion consistent with the natural order of things and the experience of man is that accused Jesus G. Ruiz, in his second going to Talisay, this time in company with Inutan, Dumangcas, GunoZarcaland Maunes Jr. was hell-bent for a showdown with Bito. SO, it was not a surprising thing, in the considered opinion of the Court, that upon accused Jesus G. Ruiz' second arrival in Talisay minutes after he was called by Bito (abusador) and was challenged by the latter to a draw, this time in company with Inutan Dumangcas, GunoZarcaland Maunes, Jr., all hell broke loose all of a sudden. 44 From the foregoing facts, it is clear that there was neither treachery nor evident premeditation. Evident premeditation was not present in the case at bar because there was no "sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. 45 As borne by the record, the accused Ruiz was called an (abusador) and was challenged to "a draw" by Bito at around 8:30 o'clock in the evening. The shooting took place at about 9:00 o'clock that same night or after a half hour had elapsed. There was not sufficient time for the two accused to coolly and serenely think and deliberate on the meaning and the consequences of what they planned to do. One half hour is not long enough for them to reflect and deliberate on the crime they planned to commit. The attack on the policemen by Jesus G. Ruiz and Alfredo Gunowas not sudden. Moreover, there was already a previous altercation between the policemen on the one hand, and the two accused and their companions on the other hand. A heated exchange of words had taken place between Sgt. Bito and the accused Jesus G. Ruiz over the parking of the police jeep in front of the VISLU office. When the accused, Jesus G. Ruiz, and his companions returned from the poblacion, the accused Alfredo GunoAntonio ZarcalJesus Maunes Jr. and Romeo Dumancas were riding in the sanie pick-up. They stopped in front of the VISLU office, stepped down from the pick-up, and took different positions. Alfredo Gunowent to a truck near Libertad and Dumancas, together with the others, went to the VISLU office. The accused, Jesus G. Ruiz, went near the pickup and shouted "Tell Sgt. Bito that I want to encounter him." The accused gave a warning to the policeman before the former opened fire. In fact, Sgt. Bito was able to return the fire. The policemen could seek cover and fire back. It was a shootout, plain and simple, between the policemen on the one hand, and the two accused and their companions on the other hand. From the facts found by the trial court, it is evident that the two accused did not employ means to commit the crime witliout risk to themselves. Treachery is present when the assault was sudden and Maunes rsepected and the victim did not have the slightest opportunity to defend himself. 46 There was no abuse of superior strength. The number of persons who shot at the policemen did not greatly outnumber the victims. Moreover, the incident was a shootout where the protagonists had equal opportunity to defend themselves. There is no basis for the award of moral and exemplary damages and expenses of litigation. WHEREFORE the decision reviewed is modified in that the two accused, Jesus G. Ruiz and Alfredo Gunoare hereby declared guilty of the crimes of homicide and frustrated homicide with mitigatin circumstance of immediate vindication of a grave offense. Hence, the penalties for the crimes committed should be imposed in the minimum periods. Applying the indeterminate Sentence Law, as amended, the following principal penalties should be imposed upon each of the accused: In Criminal Case No. 3323 for homicide — to suffer an indeterninate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as its maximum. In Criminal Case No. 3324 for frustrated homicide — to suffer an indeterminate penalty of four (4) years, two (2) months and one (1) day of prison correcional as minimum to eight (8) years of prision mayor as maximum. The accused Jesus G. Ruiz and Alfredo Gunoare ordered, jointly and severally, to indemnify the heirs of the deceased Alfredo Bito the sum of P12,000.00 and to indemnify, jointly and severally, the offended party, Amado Felias the sum of P10,000.00 as actual damages. Costs against both accused. SOORDERED. Fernando (C.J.), Barredo, Makasiar Concepcion Jr., Santos, Guerrero, Abad Santos, De Castro and Melencio Herrera, JJ., concur. Teehankee, J., took no part. Aquino and Antonio, JJ., concur in the result. #Footnotes 1 Rollo, pp. 170-173. 2 Rollo p. 56. 3 Rollo, pp. 54-55. 4 Appellee's Brief, pp. 4-13, Rollo, p. 279. 5 Lower Court's decision, pp. 52-57, Rollo, pp. 108-113. 6 Rollo, pp. 11 7-20. 7 Brief for the Accused Jesus G. Ruiz, p. 2, Rollo, p. 235. 8 Brief for the Accused Alfredo Gunopp. 1-2, Rollo, p. 262. 9 Appellee's Brief, pp. 13-15, Rollo, p. 279. 10 Ibid., p, 16. 11 Exhibit "L", par. B. 12 T.s.n., pp. 75-76. June 2,1967. 13 Exhibit "K4". 14 T.s.n., p. 79, June 2, 1967. 15 Brief for Accused, Jesus G. Ruiz, p. 14, Reno, p. 235. 16 People v. Constantino, L-23558, Aug. 10, 1967, 20 SCRA 940- 941: People v. Cuadra, L-27973, Oct. 23, 1978, 85 SCRA 576. 17 People v.Vilialba, L-17243 Aug.23,1966 17 SCRA 948. 18 Brief for Accused Jesus G. Ruiz, p. 10, Supra. 19 Exhibit "L", par. B T.s.n., pp. 75-76, June 2, 1967. 20 Brief for Accused Jesus G. Ruiz, p. 11, Supra. 21 T.s.n., P. 109, July 20, 1967. 22 T. s.n., p. 17, June 6, 1967. 23 Brief for Accused Jesus G. Ruiz, pp. 19-23, Rollo supra. 24 T.s.n., pp. 11-12, Nov. 28, 1968. 25 L-17531, Nov. 30,1962,6 SCRA 830,835. 26 U.S. v. Dodwell, et al., 11 Phil, 4; People v. Noble, 77 Phil. 93. 27 Brief of the Appellee, p. 28, Rollo, p. 279. 28 Brief for accused Alfredo Gunop. 34, Rollo p. 262. 29 T.S.n., pp. 23-24, Feb. 24, 1967. 30 T.s.n., pp. 15-16, June 6, 1967. 31 T.s.n., p. 16, Aug. 1, 1967. 32 People v. Itefuerzo 82 Phil. 576. 33 People v. Dasig et al., 93 Phil. 618. 34 Ibid, 35 Brief for Accused Guno p. 37, Rollo, supra; Reply Brief for Accused Guno p. 8, Rollo, p. 308. 36 Reply Brief for accused pp. 7-8, Rollo, pp.307-308. 37 Ibid p. 8. 38 People v. Rocal L-26857-58, 79 SCRA 509. 39 Lower court's decision, pp. 90-91, Rollo, pp. 146-147. 40 US v. Gil. 13, Phil. 330. 41 Brief for Accused Guno p. 40, Rollo, supra. 42 People v. Angeles, L-23304, May 20,1969; People v. Bautista, L-23303, May 20, 1969, 28 SCRA 184: People v. Pareja, L- 21937. Nov. 29, 1969, 30 SCRA 693. 43 Brief for Appeal, p. 41, Rollo, supra. 44 Sentence, Rollo, pp. 136-139. 45 People v. Mendoza, 91 Phil 58; People v. Roncal, L-26857-58, Oct. 21, 1977, 79 SCRA 509. 46 People vs. Plateras, L-37162, May 30, 1970, 83 SCRA 401. The Lawphil Project - Arellano Law Foundation