At about 6:40 in the evening of July 17, 1988, Rufino Alvarez was on his way to the comfort room located inside the waiting shed for the passengers at the Victory Liner Terminal Compound, Kalookan City. He was aware of the two men walking ahead of him who were almost abreast of each other. A gunshot was heard. Instinctively, Rufino looked ahead of him where the sound of the gunshot came from. He saw the man immediately in front of him holding a .45 cl. handgun. He also saw at the same time the other man just beside the gun man falling down the ground. The gun man continued walking at the same time holding his gun with two hands trying to cock it. After walking a few meters, the gun man tucked the gun in his right waist and began running away. At this time, Rufino saw Barangay Councilman Prudencio Motos and about four other men chasing the gun man. After this, Rufino approached and viewed the victim who was sprawled on the ground. At this time there were already many people around trying to view the victim.
At about the same time on said evening of July 17, 1988, Felipe Hamtig who was a security guard was at his assigned post at the V.I.P. Parking Space at the Victory Liner Compound. He saw a stout man carrying an attache case pass by his post beside the entrance to the V.I.P. parking area. There was another man following the aforementioned stout man. When the stout was about five meters away, Felipe Hamtig saw the second man shoot the stout man who was just ahead of him on the left cheek with a .45 cal. hand gun. The gun man then cocked his gun and ran towards Rizal Avenue Extension. Felipe Hamtig tried to chase the assailant but he saw several people already chasing him (assailant). Among the person chasing the assailant was Councilman Prudencio Motos. Because of this, Felipe Hamtig no longer ran after the assailant but he went back to see the victim who was sprawled on the ground. He later came to know the victim as Olongapo City Fiscal Lino Mayo.
At about the same time and date, Ruel Ganiola, a porter, was at the Sunshine Restaurant waiting for cargoes coming from Olongapo. This is located about 20 meters from the Victory Liner Terminal Compound. While standing, he heard a gunshot coming from the V.I.P. parking area. He looked at the area where the sound came from. He saw a person slumped on the ground. He saw another person running away from the man slumped on the ground who was holding a gun and was even cocking it. Councilman Motos ordered them to chase the gun man. Motos was in front of the Sunshine Restaurant at the time. He followed the order of Motos and ran after the gun man. Michael Estapia, a porter, also ran after the gun man. The chasers shouted at a policeman several meters ahead and pointed at the fleeing gun holder. The policeman was able to catch the gun wielder at the stairway of LRT Station at Monumento, Kalookan City. Pat. Francia took the gun of the accused (a .45 cal. gun) from his right waist.
At about the same time and date, Barangay Councilman Prudencio Motos was standing at the front of the Sunshine Restaurant. He heard a gunshot coming from the V.I.P. parking area. He looked at the place where the gunshot came from and saw a man fall down on the ground. He saw at the same time another man moving away from the fallen man and cocking a gun at the same time. The gun man then tucked the gun in his waistline and ran towards the direction of Rizal Avenue Extension. He shouted at his companions to run after the gun man. Prudencio Motos and his companions ran after the gun man and when the gun man was about to reach the LRT Station, they shouted at the policeman conducting traffic in the area and pointed at the running man. The policeman, Pfc. Napoleon Francia, shouted at the gun man who stopped and raised his hands. Pfc. Napoleon Francia then confiscated a .45 cal. pistol from the gun man. Afterwards, Pfc. Francia Councilman Motos and others brought the gun man to the Kalookan City Police Headquarters aboard a passenger jeep.
Dr. Bienvenido Muñoz, an NBI Medico-Legal Officer, conduct(ed) an autopsy on the body of the victim, Fiscal Lino Mayo on July 17, 1988. A request for autopsy was made by Sgt. Norberto Surara of the Kalookan City Police Force (Exhibit G). The autopsy was conducted at the International Funeral Homes located at Rizal Avenue, Manila. The body of the victim was identified by Omar Mayo, a relative of the victim (Exhibit H). The time and date of death was placed at 6:45 p.m. on July 17, 1988.
After conducting an external examination, Dr. Muñoz found out that the victim suffered one gunshot wound. The point of entrance of the bullet was on the left jaw and the point of exit was at the back of the right ear.
After conducting an internal examination, Dr. Muñoz found out that there was a fracture of the mandible and first cervical vertebra. There was also a fracture of the right mastoid bone. The cause of death was gunshot wound on the head. It was possible that the assailant was lightly at the back of the victim taking into consideration that the head is a very movable part (tsn, June 6, 1989, p. 12). The muzzle of the gun used was more than
24 inches from the victim (tsn, June 6, 1989, p. 18).
Dr. Muñoz produce a diagram he prepared showing the injuries sustained by the victim (Exhibit I). He identified the written report he made on his examination. (Exhibit J).
Aida Magsipoc, a supervising Forensic Chemist of the NBI testified in this case concerning the paraffin examination conducted on the accused on July 18, 1988.
She received the letter request to conduct the examination at about 10:00 a.m. on July 18, 1988. Before taking the paraffin cast on the hands of the accused, she required the accused to first wash his hands under running water. His hands were then air-dried. The paraffin wax was melted and was applied on the dorsal aspects of the left and right hands of the accused. She dropped the melted paraffin on the dorsal portion of both hands of the accused. While she personally conducted the pre-casting on the hands of the accused, it was Edwin Purificando, her subordinate, who actually conducted the actual examination.
Edwin Purificando, a Forensic Chemist of the National Bureau of Investigation conducted a paraffin examination of the accused, Elias Barasina. He received a letter request dated July 17, 1988 to this effect from the Kalookan City Police Force, which was signed by Lt. Norberto Surara (Exhibit K). The accused was accompanied by the NBI Forensic Laboratory by Kalookan City policemen where the accused was subjected to the paraffin casting. The casting was made on the dorsal portion of the right hand and left hand of the accused in order to test the presence of gun powder residue on the hands of the accused. The casting was placed by Aida Magsipoc, an NBI Forensic Chemist Supervisor, in the morning of July 18, 1988. Edwin Purificando was the one who placed the chemical reaction agent, however, at about 10:00 p.m. of the said date. The chemical reaction agent was then allowed to react on the paraffin cast.
As a result of the foregoing, process, the left and right hands of the accused were both found to be positive for gun powder nitrates. Edwin then, prepared a diagram of the left and right hands of the accused showing the exact spots where the presence of the nitrates was found. The diagram was marked as Exhibit "L". A written report was then made on the paraffin examination (Exhibit "M").
Because of the foregoing, it was possible that the accused fired gun before the paraffin examination was conducted (TSN, June 6, 1989, p. 40). Gun powder residue stay in the hands of a person for not more than 3 days. A photograph of the accused taken at the NBI Forensic Laboratory just before the paraffin examination was identified (Exhibit "N").
Brandeis Flores is a ballistician of the National Bureau of Investigation. On July 17, 1988, his office received a written request from Sgt. Norberto Surara of the Kalookan City Police Headquarters for the ballistic examination of one cal. .45 gun with Serial No. 008645 with magazine loaded with four rounds of live ammunitions and one empty shell marked "DDR" (Exhibit "W"). Pat. Loreto Samson of the Kalookan City Police Force personally carried the foregoing specimen to the NBI together with the letter request.
Brandeis Flores first conducted the actual test firing of the submitted .45 cal. handgun in order to obtain empty shells for comparison with the evidence shell. After obtaining the test shells, Brandeis compared them with the evidence shell under the microscope. He found out that the evidence shell contains similar characteristics markings with the three test shell was previously marked as Exhibit[s] "V-1". The three test shells were taped together and were marked as Exhibit "X". His finding was that the evidence bullet (Exhibit "V-1") was fired from the submitted .45 cal. gun marked as Exhibit "U". A written report of the ballistic examination was prepared and marked as Exhibit "Y".
Pfc. Arsenio Nacis of the Kalookan City Police Force conducted the investigation of this case. At about 7:00 o'clock in the evening of July 17, 1988, Cpl. Napoleon Francia, Barangay Councilman Motos, and a Barangay Tanod appeared in the office of Cpl. Nacis at the Station Investigation Division. Cpl. Francia then turned over to Investigator Nacis the accused and a .45 cal. handgun with four bullets and an empty shell. After having been informed that the accused was a suspect in the death of a person at the Victory Liner Compound, Pfc. Nacis, Cpl. Daniel del Rosario, Pfc. Elmario Adelante, Sgt. Serrano, and the inquest Fiscal proceeded immediately to the scene of the crime. They found the body of the victim right at the entrance of the Victory Liner Terminal. Investigator Nacis noticed blood still oozing from the victim's ear. He prepared a sketch of the scene of the crime and tried to get his evidence (Exhibit "F"). The victim was found lying face down and was positively identified by the Inquest Fiscal Bonifacio Sison as Olongapo City Fiscal Lino Mayo, his former classmate. He then invited the following witnesses to his office, namely: Councilman Prudencio Motos, Rufino Alcaraz, Felipe Hamtig, Ruel Ganiola, Michael Estapia and Pat. Napoleon Francia. Cpl. Daniel del Rosario took the statements of Rufino Alcaraz (Exhibits "A" to "A-1")
and the joint sworn statements of Rule Ganiola and Michael Estapia (Exhibit "D").
Pfc. Nacis took down the sworn statement of Felipe Hamtig
(Exhibit "C"). He also executed his own sworn statement (Exhibit "R"). He prepared a referral slip for the Kalookan City Fiscal (Exhibit "S").
Cpl. Daniel del Rosario investigated the accused but before doing so, he informed the latter of his Constitutional rights. The accused then stated his desire to have a lawyer. As instructed by Lt. Norberto Surara, one private practitioner named Atty. Abelardo Torres was fetched from the latter's office. Atty. Torres arrived at the Station Investigation Divisions of the Kalookan City Police Station at 3:00 p.m. on July 18, 1988. Atty. Torres conferred with the accused for about 30 minutes. The accused indicated his desire to give a statement in the presence of Atty. Torres. Before actually taking down the statement of the accused, Cpl. del Rosario prepared a written appraisal of the Constitutional rights of the accused in a document entitled "PAALALA" (Exhibit "P"). It was signed both by the accused and Atty. Torres. Cpl. del Rosario then proceeded to take a written statement of the accused. His counsel was present in the investigation room. The sworn statement of the accused was identified (Exhibits "Q", "Q-1", and "Q-2"). Cpl. del Rosario identified the signatures of the accused in each page of said statement (Exhibits "Q-3", "Q-4" an "Q-5"). He also identified the signature of the statement (Exhibit "Q-6").
Lt. Norberto Surara, the Chief of the Homicide Section of the Kalookan City Police Force confirmed that he assigned Pfc. del Rosario to take the sworn statement of the accused. He also confirmed that he directed that Atty. Abelardo Torres be fetched to act as counsel of the accused during the investigation. He introduced Atty. Torres to the accused and after this, the accused accepted the services of Atty. Torres (TSN, July 3, 1989, p. 12). He execute[d] a sworn statement on his participation in the execution of the sworn statement of the accused (Exhibit "Z"). The accused, when brought to Inquest Fiscal Nepthali Aliposa, refused to sign the statement. Thus, the statement was not sworn to (TSN, July 3, 1989, p. 20).
Atty. Abelardo Torres admitted being fetched in the afternoon of July 18, 1988 to assist the accused (TSN, July 10, 1989, p. 4). He admitted having conferred with the accused on said date before the statement of the latter was taken down. He was present when the accused gave a written statement but left at the beginning to take his merienda. He returned to the investigation room a few minutes later (TSN, July 20, 1989, pp. 21-22). He was present when the accused signed his written statement.
Teresa Mayo, the widow of Fiscal Lino Mayo, testified on the civil aspect of this case. Fiscal Mayo was the City Fiscal of Olongapo City at the time of his death and was receiving a monthly salary of P12,000.00 then and a monthly allowance of P2,000.00. The body of the late Fiscal was buried at Infanta, Pangasinan, after having lain in state at Olongapo City for two days and at Infanta for 2 days. She paid P20,000.00 for the burial of the victim (Exhibit "AA"). She spent P1,600.00 for the religious funeral services (Exhibit "BB"). She also spent P40,000.00 for constructing the burial site of the victim (Exhibit "CC"; Exhibit "DD"; Exhibit "DD-1"). She spent for food and groceries during the wake in the total amount of P50,000.00.
The place where the victim, Fiscal Lino Mayo, was shot inside the V.I.P. parking area inside the Victory Liner Compound located at Kalookan City. The V.I.P. Parking area is located at the ground floor of the Administrative Office of said bus company (see Exhibit "B" and
Exhibit "F").
Rufino Alcaraz described the area where Fiscal Mayo, the victim was shot as well lighted (TSN, May 9, 1989, p. 7). The lighting facilities inside the Bus Terminal of the Victory Liner consisted of fluorescent lamps installed at the ceiling. A distance of four to five meters separate one fluorescent lamp from another (TSN, May 9, 1989, p. 4). This was corroborated by Felipe Hamtig (TSN, May 9, 1989, p. 5). This was likewise corroborated by Ruel Ganiola who stated that the lighting facilities included the V.I.P. Parking Area (TSN, May 22, 1989, p. 9).
Prosecuting witness Rufino Alcaraz was residing at Stall No. 1 at the Victory Liner Compound on the day of the incident. He was only about five (5) meters from the assailant when he heard a gunshot (TSN, May 3, 1989, pp. 5; 26). He saw the faces of both men although they were in front of him because their faces were a little oblique (TSN, May 9, 1989, p. 28). The gunman was carrying a .45 cal. pistol (TSN, May 9, 1989, p. 38). Witness Alcaraz first identified the gunman when he executed a different statement before the police on the evening of July 17, 1988 right after the shooting. The gunman turned out to be Elias Barasina, the accused (TSN, May 9, 1989, p. 37).
Prosecution witness Felipe Hamtig was employed as a security guard of the Lions Security Agency with assignment at the Victory Liner Compound (V.I.P. Parking Area) at the time of the incident. He was seated at his post at the V.I.P. Parking Area when he saw the accused shoot the victim at the left cheek with a .45 cal. pistol (TSN, May 10, 1989, pp. 8-9). He was only five (5) meters away from the victim then (TSN, May 10, 1989, p. 6). He identified the gunman on the evening of July 17, 1988 when he was investigated by the Kalookan City Policemen (Exhibit "C-1"). The gunman was Elias Barasina whom the witness again identified during the trial (TSN, May 10, 1989, pp. 6-7).
Prosecution witness Ruel Ganiola was a resident of Stall No. 3 inside the Victory Liner Compound at the time of the incident. He was then working as a porter at the Victory Liner Compound. He was standing at the Sunshine Restaurant which is about 20 meters from the V.I.P. Parking Area inside the Victory Liner compound when he heard a gunshot (TSN, May 22, 1989, p. 10).
He saw the gunman running towards Rizal Avenue Extension from the V.I.P. Parking area. In doing so, the gunman passed by the place where Ganiola and another porter, Michael Estapia were standing in front of the Sunshine Restaurant (TSN, 5/22/89, pp. 36-37). Because he recognized the gunman, he identified the latter inside the Kalookan City Police Headquarters on July 17, 1988 (TSN, May 22, 1989, p. 18). The gunman was the accused, Elias Barasina.
Prosecution witness Prudencio Motos was a Barangay Councilman compound the area around the Victory Liner Compound and owned a carinderia inside the compound of the Victory Liner Compound at the time of the incident. The gunman was three meters away when he passed in front of witness Motos outside the Sunshine Restaurant. Witness Motos saw the face of the gunman (TSN, May 23, 1989, p. 24). He was with Pfc. Napoleon Francia and others when the accused was brought to the Kalookan City Police Headquarters (TSN, May 23, 1989, p. 3). He identified the gunman at the Kalookan City Police Headquarters on July 18, 1988 (TSN, May 23, 1989, p. 16).
The gun which was confiscated from the accused by Pfc. Napoleon Francia on July 17, 1988 is a cal. .45 pistol marked "Colt" with Serial
No. 008645 with four (4) live bullets and one (1) empty shell. It was marked as Exhibit "U" during the trial. The four live bullets which were taped together and the markings exhibit was placed on the tape. The spent shell was marked as Exhibit "V-1".
Barangay Councilman identified the gun in Court. He was able to recognize it because of the extended barrel and because of its serial number. He first saw the gun when the gunman passed by him. He was one meter away when Pfc. Francia confiscated the gun from the gunman. (TSN, June 27, 1989, p. 3). He saw Pfc. Francia recover the spent bullet from the gun while Pfc. Francia, Motos and others were inside the jeep with the gunman on their way to the police headquarters (TSN, June 27, 1989, p. 6).
Witness Rufino Alcaraz testified that the accused used a .45 cal. pistol (TSN, May 9, 1989, pp. 8; 39-40).
Witness Felipe Hamtig stated that the accused used a .45 cal. pistol in shooting the victim (TSN, May 10, 1989, pp. 8-9).
Witness Ruel Ganiola stated that when the gunman passed by him the gunman was holding a .45 cal. pistol handgun (TSN, May 22, 1989,
p. 52).
Witness Pfc. Arsenio Nacis identified the gun which was turned over to him by Pfc. Francia and Councilman Motos and which was previously marked as Exhibit "U". This was previously marked as Exhibit "U". This was previously confiscated from the accused. (TSN, June 27, 1989, p. 12). He recognized the gun (Exhibit "U") because of its serial no. and because of its extended muzzle which is called a "Pin gun" (TSN, June 27, 1989, pp. 12-13).
The accused, Elias Barasina is not a licensed firearm holder of any kind. This was certified to by the Chief of the Records, Legal and Research Branch of the Firearms and Explosives Unit located at Camp Crame, Quezon City in a certification dated June 13, 1989 (Exhibit "T"). The Certification was brought to the courtroom by Lt. Agrifino Javier of the aforesaid office. Lt. Javier identified the Certificate marked Exhibit "T".
In the course of the trial, the accused, through counsel, filed a Motion to Quash on the ground of double jeopardy. It was alleged that the accused was in jeopardy of being convicted of two offenses — Murder and Illegal Possession of Firearms based on an alleged act which is defined and penalized as only one offense under Paragraph 2 of Section 1 of P.D. 1866 which states:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
This Motion was opposed by the Prosecution.
In an Order, dated August 17, 1989, this Court denied the Motion to Quash and cited the case of Tangan vs. People, 155 SCRA 435; 436 in support of its Order. Its ruling follows:
There is no double jeopardy in the filing of the two aforesaid criminal cases against the accused because the first jeopardy has not yet attached. It is well settled that the mere filing of two informations or complaints charging the same offenses does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his express consent. It is the conviction or jeopardy of being convicted or the acquittal of the accused or termination of the case that bars further prosecution of the same offense or any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. (Tangan vs. People, 155 SCRA 435, 436).
Another issue cropped up during the Joint Trial. The cross examination of prosecution witness Felipe Hamtig was not completed because he did not return despite the issuance of subpoena and a warrant for his arrest. Hamtig testified on direct examination on May 10, 1989. A partial cross-examination was conducted. Because of the failure of Hamtig to return for the completion of the cross-examination, accused through counsel moved to strike out the records the entire testimony of Felipe Hamtig. The principal basis of the Motion is the right of the accused to confront and cross-examine the witnesses against as mentioned under
Sec. 14, Article III of the Constitution of the Philippines; as stated under paragraph F of Rule 115 of the Revised Rules of Criminal Procedure and as listed in paragraph 6 of Rule 132 of the Revised Rules on Evidence. This was opposed by the Public Prosecutor in his Memorandum of August 4, 1989.
This Court denied on August 8, 1989 the Motion to Strike Out the Testimony of Felipe Hamtig. This was based on the following:
1. The partial cross examination of the witness was fairly through considering that the same could be found from page 22 to page 37 of the Transcript of Stenographic notes taken on May 10, 1989;
2. The Court was bale to make its observations on the reliability of its witness and to determine if his testimony in chief was adversely affected by the partial cross examination;
3. The failure to complete the cross-examination was not the fault of the Prosecution. The defense moved for a postponement of the cross-examination on May 10, 1989 but this was opposed by the Prosecution. As a compromise, the Defense was directed to cross examine the witness up to 11:00 A.M. on said date. Had the postponement not been made, the cross-examination should have been completed on May 10, 1989;
4. Defense counsel failed to enter into the records how the absent witness, Felipe Hamtig would have testified if he were available for further cross-examination; and
5. The right of cross-examination is not absolute and the Court may at its discretion, limit the same and consider it terminated if it would serve the ends of justice (People vs. Gorospe, 129 SCRA 242, 243).
The version of the accused follows:
Between 6:30 p.m. and 7:00 p.m. on July 17, 1988, he was walking with his brother Juanito, along Rizal Avenue Extension near the LRT Station, Caloocan City. They were on the right side of the Rizal Avenue Extension because they were taking the light railway on their way to Pasay. The accused noticed persons chasing each other at his back. Then somebody bumped him and he stumbled on the sidewalk. Something fell down from said person when he stumbled. This man stood up immediately and ran away. The accused picked up the thing which fell from the stranger. He saw that it was a gun. He ran after the man to return the gun and he even fired a warning shot. However, he lost his track of the man who ran inside the LRT Station. As he was holding the gun, policemen who were running after the said man accosted the accused and took the gun from him. He was then brought to the Caloocan City Police Headquarters. He submitted his sworn statement to the Fiscal who conducted a re-investigation of this case (see Exhibit "3", "3-A", "3-B", "3-C"). The testimony of the accused was partly corroborated by Rodolfo Laurente, a balot vendor. (pp. 2-12, Decision;
p. 27, Rollo in CA-G.R. No. 10892).
xxx xxx xxx
One of the principal defenses set up by the accused was that he was mauled, maltreated and forced to sign two documents by the Caloocan policemen while he was inside a small cell inside the Caloocan City Police Headquarters. He identified those two documents as Exhibit "P", the "Paalala", dated July 18, 1988, and his statement dated July 18, 1988 (Exhibits "Q", "Q-1", "Q-2"). He further claimed that he never read any of those documents and that he was not assisted by any lawyer during their execution. He claimed further that he did not know Atty. Abelardo Torres. He signed an Affidavit of retraction dated July 22, 1988 (Exhibit "2", "2-a", "2-b"). (pp. 2-13, RTC Decision; pp. 27 et seq., Rollo in CA-G.R.
No. 10892).
