G.R. No. 138612




SECOND DIVISION G.R. No. 138612 November 11, 2003 PEOPLE OF THE PHILIPPINES, Appellee, vs. PERCIVAL GONZA Y BORRAL, Appellant. D E C I S I O N CALLEJO, SR., J.: Before us on appeal is the Decision1 dated December 14, 1998 of the Regional Trial Court (RTC) of Bulan, Sorsogon, Branch 65, in Criminal Case No. 116, finding appellant Percival Gonza guilty beyond reasonable doubt of murder for the killing of Virgilio Mortega, and sentencing him to suffer the penalty of reclusion perpetua, and to indemnify the heirs of the victim ₱50,000 as actual damages, ₱50,000 as indemnity, and ₱50,000 as moral damages. It was August 16, 1996, and Virgilio Mortega was attending the second day of the wake of his kin, Ramil Mortega. Singing all night long, Virgilio had no inkling that it would be his last. Mercilessly stabbed to death by Percival Gonza, he breathed his last at the age of forty-two, leaving behind a wife and six children. The prosecution cries murder; Percival says it was a desperate act of self-preservation. The Information filed on October 7, 1996, charged Percival with murder committed as follows: That on or about the 16th day of August, 1996 at around 11:00 o’clock in the evening or thereafter, at Barangay Caditaan, Municipality of Magallanes, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a fan knife, with intent to kill and with treachery, did then and there, wilfully, unlawfully and feloniously, attack, assault and stab one Virgilio Mortega y Villa, inflicting upon the latter serious injuries which caused his instantaneous death, to the damage and prejudice of his legal heirs. CONTRARY TO LAW.2 Upon arraignment on December 9, 1996, Percival, with the assistance of a counsel de oficio, pleaded not guilty to the indictment.3 Trial thereafter ensued. The Evidence of the Prosecution4 In the evening of August 16, 1996, Percival Gonza, Virgilio Mortega, and other condolers were at the house of Catalino Mortega in Barangay Caditaan, Magallanes, Sorsogon,5 attending the wake of Catalino’s son, Ramil.6 To while away their time, Percival, Virgilio’s third cousin and Catalino’s brother-in-law, and a handful of condolers, engaged themselves in drinking and singing in a makeshift tent just outside Catalino’s house, and a kapihan (coffee shop).7 When the condolers finished drinking at around 11:00 p.m., they transferred to the kitchen in the kapihan where Catalino and his sister Edina Dimaano served them coffee.8 Virgilio continued singing.9 Not long after, Percival decided to go home.10 Before leaving, however, he bade Catalino goodnight. Catalino was then at the kapihan fixing an electric fan.11 Virgilio also decided to leave. As Percival exited from the kapihan, Virgilio followed him.12 Suddenly, Percival turned around and repeatedly stabbed Virgilio with his fan knife.13 Virgilio backed away, towards the entrance of the kapihan, but Percival pursued him and there finished him off with three more successive stabs.14 Virgilio fell to the ground and died shortly thereafter.15 Catalino and Edina could only watch the ghastly incident in horror. Catalino pulled himself together and lunged at Percival, in an effort to subdue him. They fell to the ground, with Catalino on top of Percival. As they grappled for the possession of the knife, Catalino shouted for help. Pedro Golloso and Joseph Hental responded and wrested the knife from Percival. Thereafter, they released Percival and allowed him to stay at the kapihan’s kitchen. In the meantime, Catalino reported the incident to their barangay captain, Apolinario Gentolizo, who, upon arrival at the scene of the crime, took custody of Percival.16 The next morning, Dr. Irene V. Ella, Municipal Health Officer of Magallanes, Sorsogon, performed an autopsy on the body of the victim and submitted a postmortem report on her findings, thus: 1. Stab wound left mid lateral 2 cm. from the sternum at the level of the nipple 2 x 2.5 cms. 2. Stab wound left thorax 2 cms. below the nipple 2 x 5 cms. 3. Stab wound right mid lateral 2 cms. from the sternum 2 x 1 cms. 4. Stab wound at the left hypochondrium 3 x 3 cms. 5. Lacerated wound at the right arm mid postero-lateral 5 x 6 cms. Cause of death-irreversible shock secondary to massive internal bleeding due to fatal stab wound in the chest.17 Dr. Ella said that when she autopsied the cadaver of the victim, the same was already in the state of rigor mortis.18 Dr. Ella considered the stab wound on the thorax as the most fatal.19 She opined that the said wound could have been inflicted on the victim when the latter had already fallen down.20 She added that the other injuries sustained by the victim could have been inflicted while he was in the act of evading the attack or defending himself.21 On August 19, 1996, Catalino and Edina executed sworn statements at the Magallanes Police Station. Both pointed to Percival as the culprit in the killing of Virgilio.22 Zenaida Mortega, wife of the victim, testified that she suffered damages as a result of her husband’s death. Mercy Mortega, her sister-in-law, spent ₱7,200 for the funeral services. She paid ₱250 to Mt. Carmel-Magallanes for a five-year rental of the niche. She also spent a total amount of ₱58,015 for the ten-day wake. Save for the funeral services and the niche rentals, no receipt for all the other expenses was presented. The victim’s widow further testified that her grief over the death of her husband could not be quantified in terms of money. She left it to the court to fix the award for moral damages. She further alleged that her husband was earning an average of ₱5,000 a month, and that he was forty-two years old at the time of his death.23 The Defense of the Accused24 Percival admitted stabbing Virgilio but claimed that he only acted in self-defense. He declared that on August 16, 1996, he arrived early at his nephew’s wake at around 4:00 p.m., where he helped in the food preparation for the guests. When he finished cooking at about 8:00 p.m., his brother-in-law, Catalino Mortega, suggested that he join the merrymaking outside the house. At around 10:30 p.m., a drunk Virgilio Mortega arrived. He was invited to join the condolers. However, Virgilio resented the invitation and uttered invectives against a certain Adelardo, who was drinking with the group. Percival intervened to pacify Virgilio and admonished the latter to watch his language, but Virgilio vented his ire on Percival, screaming, "Son of a whore!" At that point, to prevent the tension from escalating, Percival backed down and went inside Catalino’s house to inform Catalino that he was leaving. As Percival stepped out of the house, Virgilio suddenly, without provocation, punched him on the left eye, blurring his vision. Instead of retaliating, Percival retreated to the house. But Virgilio followed him and boxed him. Percival managed to evade the blows. His back to the wall and fearing for his life, he picked up an open fan knife idly lying on top of the kitchen table and stabbed Virgilio once with it. Despite his wound, Virgilio still wrestled with him until they got separated and went their opposite ways. He rushed to the office of the barangay captain to whom he surrendered.25 On August 19, 1986, Dr. Irene Ella treated his contusion on the left eye, for which the latter issued a medical certificate.26 The Verdict of the Trial Court On December 14, 1999, the trial court rendered judgment, the dispositive portion of which reads: WHEREFORE, in view of the foregoing premises, we find the accused PERCIVAL GONZA Y BORRAL guilty beyond reasonable doubt of MURDER defined and penalized in Art. 248 of the Revised Penal Code, as amended by R.A. 7659, and hereby sentences him to a single indivisible penalty of RECLUSION PERPETUA (in accordance with par. 3, Art. 63, R.P.C. there being a mitigating circumstance of VOLUNTARY SURRENDER with no aggravating circumstance with all the accessory penalties attendant thereto, and to indemnify the heirs of the victim Virgilio Mortega, as follows: a) ₱50,000.00 for actual damages; b) ₱50,000.00 for compensatory damages by reason of his death; and c) another ₱50,000.00 by way of moral damages, with no subsidiary imprisonment in case of insolvency, and to pay the costs. The number of days, months, or years of confinement of the herein accused shall be credited in his favor for purposes of the execution of the sentence. SO ORDERED.27 In his brief, Percival, now the appellant, asserts that: I THE COURT A QUO COMMITTED REVERSIBLE ERROR WHEN IT RELIED SOLELY ON THE ALLEGED EYEWITNESSES’ ACCOUNT OF THE INCIDENT AND DISREGARDED COMPLETELY THE TESTIMONY OF THE ACCUSED-APPELLANT THAT HE MERELY ACTED IN SELF-DEFENSE. II GRANTING ARGUENDO THAT THERE WAS NO COMPLETE SELF-DEFENSE, THE COURT A QUO STILL ERRED IN FINDING THE ACCUSED GUILTY OF MURDER INSTEAD OF THE LESSER OFFENSE OF HOMICIDE.28 The appellant insists that he acted in self-defense. He asserts that it was the victim who started the fight. He faults the trial court for giving full probative weight and credence to the testimonies of prosecution eyewitnesses Catalino Mortega and Edina Dimaano, despite their implausibility and unreliability. He points out that Catalino and Edina only testified on the actual killing, and that nothing was said regarding events prior thereto, which would show that it was the victim who was in fact the unlawful aggressor. The contention of the appellant is barren of merit. Where an accused invokes self-defense, the burden of evidence is shifted to him to prove that he killed the victim to save his life. For this reason, he must rely on his own evidence and not on the weakness of the evidence for the prosecution, for such can no longer be disbelieved after the accused admits the killing.29 He must prove with clear and convincing evidence the presence of all the requisites of self-defense, namely, (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself.30 Of these requisites, the most decisive is that the victim was guilty of unlawful aggression. This is because the theory of self-defense is based on the necessity on the part of the person being attacked to prevent or repel the aggression. Hence, absent evidence of a prior unlawful and unprovoked attack by the victim, the claim of self-defense whether complete or incomplete cannot prosper.31 To meet this burden, the appellant offered his testimony as well as a medical certificate32 stating that he suffered contusions on the night of the incident. These pieces of evidence, however, are not enough. First. The appellant failed to corroborate his claim of self-defense with evidence other than his own testimony, despite the fact that there were other persons in the locus criminis when the stabbing incident happened and who, therefore, may have witnessed the same. In People v. Calabroso,33 we said that self-defense to be successfully invoked must be established with certainty and proved with sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. It may not be justifiably entertained when it is uncorroborated by separate competent evidence. Second. The appellant’s bare and self-serving assertions cannot prevail over the positive identification of the appellant as the malefactor made by the two principal witnesses of the prosecution, Edina Dimaano and Catalino Mortega, the appellant’s brother-in-law. Edina testified, thus: PROS. PURA Q How many times did the accused stab Virgilio Mortega? A Six (6) times. Q Did you see Virgilio Mortega hit? A Yes, Sir. Q Would you please describe to us what kind of weapon was used by the accused in stabbing Virgilio Mortega? A Yes, it was a knife with green handle.34 ... Q And what were the victim going when he was stabbed by the accused, if you know? A The victim was trying to go out because Percival Gonza was going home, and the victim wanted to accompany him home. And as he went out, Percival Gonza stabbed him. He was following Percival, when Percival Gonza faced him and stabbed him.35 Her testimony was corroborated by her brother, Catalino, thus: Q So, what happened after that? A Afterwards, I just saw the victim back into my house and I saw the accused following him with a knife.36 ... Q What did Percival Gonza do with that bladed instrument? A He stabbed the victim. Q How many times did you see Percival Gonza stabbed the victim Virgilio Mortega? A I just saw three times. Q What happened to Virgilio Mortega? A He fell down then.37 There is no evidence to indicate that Catalino Mortega, the brother-in-law of the appellant, and Edina Dimaano, Catalino’s sister, were moved by improper motives to prevaricate against the appellant. Hence, the testimonies of the prosecution witnesses are entitled to full faith and credit. The rule is settled that factual findings of the trial court are accorded great respect, since the trial court is in a much better position than an appellate court to properly evaluate the evidence and observe directly the witnesses’ deportment and manner of testifying.38 The trial court gave credence to the testimonies of the prosecution witnesses and there is no reason to depart therefrom. Third. The mere fact that the appellant suffered an injury does not prove his claim of self-defense.1awp++i1 The mere exhibition of scars by the accused does not meet the required quantum of proof of unlawful aggression by his victim.39 Furthermore, the appellant submitted himself for examination three days after the incident, which engenders doubt as to how and when he suffered his alleged injuries. Lastly, and more importantly, the physical evidence, namely the multiple stab wounds sustained by Virgilio Mortega, belies the appellant’s testimony that he stabbed the victim only once. The victim was stabbed five times. Indeed, the sheer number of wounds alone on vital parts of the body of the victim totally negates the appellant’s pretensions at self-defense and, in fact, indicates a determined effort on his part to kill and not just defend himself.40 Intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used.41 In this case, the appellant was armed with a fan knife. The Court is likewise unconvinced that just because the victim was drunk at the time of the incident, it follows that he was the unlawful aggressor. To be regarded as the unlawful aggressor, the victim should have manifested an external act clearly evincing his intent to cause and commit harm to others. In this case, the testimonies of the prosecution witnesses belied any act of aggression on the part of the victim. As was pellucidly established at the time of the incident, the victim was unarmed and was on his way home when the appellant attacked and killed him. The Crime Committed by the Appellant On the second assignment of error, the appellant asserts that if found guilty, he should only be made liable for the crime of homicide and not for murder. He claims that the prosecution failed to prove the existence of the qualifying circumstance of treachery. We agree. Treachery is not presumed. The circumstances surrounding the murder must be proved as indubitably as the crime itself.42 The rationale of the principle was explained by the Court in People v. Ilo,43 thus: It is an ancient but revered doctrine that qualifying and aggravating circumstance before being taken into consideration for the purpose of increasing the degree of the penalty to be imposed must be proved with equal certainty and clearness as that which establishes the commission of the act charged as a criminal offense. It is not only the central fact of a killing that must be shown beyond reasonable doubt; every qualifying and aggravating circumstance alleged to have been present and to have attended such killing, must similarly be shown by the same degree of proof.44 There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.45 Two conditions must then concur for treachery to be present, viz.: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the said means of execution were deliberately or consciously adopted.46 The Court held that treachery cannot be appreciated if the assailant did not make any preparation to kill the victim in such a manner as to insure the killing or to make it impossible or difficult for the victim to defend himself. The prosecution must prove that the killing was premeditated or that the assailant chose a method of attack directly and specially to facilitate and insure the killing without danger to himself.47 The essence of treachery is that the attack is deliberate and without warning, done in a swift and unexpected manner of execution affording the hapless, unarmed and unsuspecting victim no chance to resist or to escape.48 To establish treachery, the evidence must show that the offender made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or difficult for the person attacked to defend himself.49 The mode of attack must be planned by the offender and must not spring from the unexpected turn of events.50 On this aspect, the prosecution failed to discharge its burden. The trial court merely relied on the suddenness of the attack on the unarmed victim to justify treachery. As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat.51 As intimated above, the rule does not apply, however, where the attack was not preconceived and deliberately adopted, but was triggered by the sudden infuriation on the part of the accused because of the victim’s provocative act. Here, the evidence negates the hypothesis that the appellant reflected on the means, method and form of killing the victim. Although the prosecution’s principal witnesses testified that they actually witnessed the stabbing, their testimonies offer no sufficient basis for reasonably inferring that treachery attended the commission of the crime. The evidence on record does not adequately show the manner in which the attack was carried out. Edina said that she saw the appellant suddenly stab the victim when the latter tried to accompany the former as he went out of the kapihan. Catalino, on the other hand, only witnessed the events that happened inside the kapihan. At this juncture, the aggression was already half underway. Clearly, Catalino did not see the commencement of the assault, and there was no way for him and Edina to know whether the appellant was able to deliberately adopt a sudden and unexpected method of attack which deprived the victim of an opportunity to defend himself. Indeed, the gap in the prosecution’s evidence cannot be substituted by mere suppositions, as what the trial court did. Again, while the stabbing was sudden and unexpected and gave the victim no opportunity to undertake any form of defense or evasion, this does not necessarily justify a finding of treachery, absent any evidence that this mode of assault was consciously and deliberately adopted to insure the execution of the crime without risk to the appellant. Apropos is our ruling in the case of People v. Guzman,52 thus: [I]t does not always follow that because the attack is sudden and unexpected, it is tainted with treachery. Significantly, in treachery, the mode of attack must be consciously adopted. This means that the accused must make some preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or to retaliate. The mode of attack, therefore, must be planned by the offender, and must not spring from the unexpected turn of events. In the case at bar, there is reasonable doubt that the appellant deliberately and consciously adopted a mode of attack to kill the victim without risk to himself considering that both the appellant and the victim were then attending a wedding party, and it was the victim who frontally approached the appellant who at that time was watching the dance, and asked if they could talk outside the dance area. The appellant answered that they could talk right then and there, after which the appellant stabbed the victim, hitting him on the left chest. It appears that the decision of the appellant to stab the victim was sudden. The suddenness of an attack, does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental. Considering the rule that treachery cannot be inferred but must be proven as fully and convincingly as the crime itself, any doubt as to the existence of treachery must be resolved in favor of the accused-appellant. Accordingly, the crime at bar should only be considered homicide.1âwphi1 The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. In view of the presence of one mitigating circumstance, i.e., voluntary surrender, the maximum of the indeterminate penalty should be taken from the minimum period of reclusion temporal, pursuant to Article 64(2) of the aforesaid Code. Conformably, the appellant is hereby sentenced to suffer a prison term of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. Civil Liabilities of the Appellant The trial court correctly awarded to the heirs of the victim civil indemnity in the amount of ₱50,000 which needs no proof other than the death of the victim.53 The award of moral damages in the amount of ₱50,000 is likewise sustained, pursuant to controlling case law.54 However, the Court cannot sustain the award of actual damages in the amount of ₱50,000 considering that only the amount of ₱7,450 was properly receipted. Nevertheless, the heirs are entitled to temperate damages in the amount of ₱25,000.55 Finally, the trial court was correct in not awarding damages for lost earnings. The prosecution merely relied on Zenaida Mortega’s self-serving statement, that her husband was earning ₱5,000 per month as a farmhand. Compensation for lost income is in the nature of damages and requires due proof of the amount of the damage suffered. For loss of income due to death, there must be unbiased proof of the deceased’s average income. Also, the award for lost income refers to the net income of the deceased, that is, his total income less average expenses. In this case, Zenaida merely gave a self-serving testimony of her husband’s income. No proof of the victim’s expenses was adduced; thus, there can be no reliable estimate of his lost income.56 WHEREFORE, the decision of the Regional Trial Court of Bulan, Sorsogon, Branch 65, is AFFIRMED with MODIFICATIONS. Appellant Percival Gonza is found GUILTY beyond reasonable doubt of the felony of homicide, defined and penalized by Article 249 of the Revised Penal Code, and hereby metes on the said appellant an indeterminate penalty of eight (8) years of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. The appellant is directed to pay to the heirs of Virgilio Mortega, the amount of ₱50,000 as civil indemnity; the amount of ₱50,000 as moral damages; and the amount of ₱25,000 as temperate damages. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur. Footnotes 1 Penned by Judge Adolfo G. Fajardo. 2 Records, p. 1. 3 Id. at 35. 4 The prosecution presented four witnesses: Edina Dimaano, Dr. Irene Ella, Catalino Mortega, and Zenaida Mortega. 5 TSN, 29 April 1996, pp. 3-4 (Edina Dimaano). 6 TSN, 11 August 1997, p. 5 (Catalino Mortega). 7 Id. at 4-5. 8 Id. at 5. 9 TSN, 29 April 1996, p. 25 (Edina Dimaano). 10 TSN, 11 August 1997, p. 5 (Catalino Mortega). 11 Id. at 4. 12 TSN, 29 April 1996, p. 8 (Edina Dimaano). 13 Id. 14 TSN, 11 August 1997, pp. 6-7 (Catalino Mortega). 15 Id. 16 Id. at 8-9. 17 Records, p. 13. 18 TSN, 24 June 1997, p. 13 (Dr. Irene Ella). 19 Id. at 8. 20 Id. at 10. 21 Id. at 12. 22 Records, pp. 11-12. 23 TSN, 23 March 1998, pp. 8-15 (Zenaida Mortega). 24 The defense presented as its lone witness the appellant. 25 TSN, 22 June 1998, pp. 3-9 (Percival Gonza). 26 Exhibits "I" and "I-B." 27 Records, pp. 122-123. 28 Rollo, p. 61. 29 People v. Gadia, 365 SCRA 557 (2001). 30 People v. Zate, 366 SCRA 721 (2001). 31 People v. Herrera, 371 SCRA 480 (2001). 32 Records, p. 101. 33 340 SCRA 332 (2000). 34 TSN, 29 April 1997, p. 6 (Edina Dimaano). 35 Id. at 8. 36 TSN, 11 August 1997, p. 6 (Catalino Mortega). 37 Id. at 7. 38 People v. Damitan, 371 SCRA 629 (2001). 39 People v. Mier, 324 SCRA 628 (2000). 40 People v. Baniel, 275 SCRA 472 (1997). 41 People v. Bayod, 351 SCRA 162 (2001). 42 People v. Geral, 333 SCRA 453 (2000). 43 G.R. No. 140731, November 21, 2002. 44 Id. at 6. 45 Article 14(6), Revised Penal Code. 46 People v. De Mesa, 354 SCRA 397 (2001). 47 People v. Bautista, 254 SCRA 621 (1996). 48 People v. Galano, 327 SCRA 462 (2000). 49 People v. Albao, 327 SCRA 123 (2000). 50 People v. Ereño, 326 SCRA 157 (2000). 51 People v. Tavas, 303 SCRA 86 (1999). 52 372 SCRA 344 (2001). 53 People v. Delim, G.R. No. 142773, January 28, 2003. 54 People v. Casitas, Jr., G.R. No. 137404, February 14, 2003. 55 People v. Abrazaldo, G.R. No. 124392, February 7, 2003. 56 People v. Esponilla, G.R. No. 122766, June 20, 2003. The Lawphil Project - Arellano Law Foundation