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PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-37203. October 23, 1982.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CARLITO SADIWA, ROMEO PAYLAGO and BENJAMIN ALAB, Defendants, CARLITO SADIWA, Appellant.

The Solicitor General for Plaintiff-Appellee.

Felipe L. Gozon for Appellant.

SYNOPSIS


Atty. Salvador Venturanza, along with five others, were walking in an uninhabited place and proceeding to visit a parcel of land which Atty. Venturanza was intending to purchase when several gunshots suddenly rang out fatally hitting the latter. Appellant Sadiwa and other persons were subsequently charged with murder for the killing. Appellant interposed the defense of alibi. On trial, prosecution witnesses Nenita Cahilig and Bernardo Ola positively identified appellant as present and holding a long firearm at the scene when the victim was fatally shot several times. Nenita Cahilig also testified that appellant, prior to the incident, inquired and offered to buy the subject parcel of land and was told of the date and time when Atty. Venturanza was going to visit the said piece of land. The trial court found accused appellant guilty of murder qualified by treachery, with the aggravating circumstances of evident premeditation and uninhabited place. He was sentenced to death.

On review, the Supreme Court held that. (a) appellant’s alibi has been destroyed by the testimony of prosecution witnesses who positively identified him as present and holding a rifle at the scene of the crime; and (b) the killing is murder, qualified by treachery because the attack was sudden and gave the victim no chance to defend himself, with no attendant aggravating circumstances.

Assailed judgment of conviction is affirmed with modification of the penalty to reclusion perpetua.


SYLLABUS


1. REMEDIAL LAW; EVIDENCE; ALIBI; DESTROYED BY POSITIVE IDENTIFICATION BY IMPARTIAL WITNESSES. — Appellant’s defense of alibi has been destroyed by the testimony of Nenita Cahilig and Bernardo Ola who positively identified him as present and holding a long firearm at the scene when Atty. Venturanza was fatally shot several times. Cahilig and Ola had no reason to testify falsely against the appellant. Hence, their credibility cannot be seriously questioned.

2. ID.; ID.; MOTIVE; PROOF THEREOF NOT INDISPENSABLE WHERE POSITIVE IDENTIFICATION OF THE ACCUSED AS THE CULPRIT HAS BEEN MADE BY WITNESSES; CASE AT BAR. — Where the witnesses for the prosecution, though they did not actually see the shooting, heard the firing of shots and immediately thereafter saw appellant standing nearby with a carbine in hand, proof of motive is not indispensable.

3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY. — The killing of the victim was qualified by treachery because the attack was sudden and gave him no chance to defend himself.

4. ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; NOT PRESENT IN CASE AT BAR. — There is no evidence that the killing of Atty. Venturanza was the result of meditation, calculation, reflection or persistent attempt, hence the trial court erred in holding that the murder was aggravated by evident premeditation.

5. ID.; ID.; UNINHABITED PLACE (DESPOBLADO); NOT PRESENT IN INSTANT CASE. — There is likewise no evidence that the site of the killing was purposely selected so that succor would not be available. In fact, the victim was with several persons when he was shot. Hence, the trial court erred in holding that the murder was aggravated by despoblado.

6. ID.; MURDER; APPROPRIATE PENALTY THEREFOR ABSENT MITIGATING AND AGGRAVATING CIRCUMSTANCES; RECLUSION PERPETUA. — The appropriate penalty for murder absent mitigating and aggravating circumstances is reclusion perpetua.


D E C I S I O N


ABAD SANTOS, J.:


Automatic review of a decision of the Court of First Instance of Oriental Mindoro in Criminal Case No. DJC-138, imposing the death penalty on CARLITO SADIWA for the crime of murder.

Carlito Sadiwa and other persons were accused of murder in an information which reads as follows:jgc:chanrobles.com.ph

"That on or about the 7th day of September 1970 at Sitio Pansulan, Barrio Inclanay, Municipality of Pinamalayan, Province of Oriental Mindoro and within the jurisdiction of this Honorable Court, the above-named accused CARLITO SADIWA and BENJAMIN ALAB, conspiring, confederating and mutually helping one another, with evident premeditation, treachery and motivated by pecuniary consideration of reward money and while armed with carbine Caliber .30 then and there wilfully, unlawfully and feloniously and with a decided purpose to kill, waylaid, ambushed and shot therewith one Atty. Salvador Venturanza employing means, manner and form in the execution thereof which tended directly and specially to insure its commission without danger to the person of said accused, inflicting upon said Atty. Salvador Venturanza, several mortal wounds in different parts of the body which caused his instantaneous death; while accused Romeo Paylago, though not a principal by direct participation but conspiring, confederating and mutually aiding the other co-accused Carlito Sadiwa and Benjamin Alab to kill and liquidate said Atty. Venturanza did then and there wilfully, unlawfully and feloniously and motivated by personal hate and revenge due to land dispute and other court litigations, induce, instruct and instigate by means of reward money, or pecuniary consideration to murder said Atty. Salvador Venturanza as they did in fact murder him in an isolated place pursuant to and in accordance with the instruction and instigation of said Romeo Paylago, a principal by inducement.

"That in the commission of the crime the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation, uninhabited place and that the crime was committed in consideration of a price, reward or promise are attendant.’

On June 1, 1973, the court promulgated its decision consisting of 74 pages with the following judgment:jgc:chanrobles.com.ph

"WHEREFORE, Accused Carlito Sadiwa is hereby found guilty beyond reasonable doubt of the crime of murder as defined and penalized in Art. 248 of the Revised Penal Code, qualified by treachery and with the aggravating circumstances of evident premeditation and the crime having been committed in an uninhabited place, and there being no mitigating circumstance to offset the same, he is therefore sentenced to suffer the capital punishment of DEATH and to pay the heirs of the deceased Atty. Salvador Venturanza the amount of P12,000.00 as indemnity. He is also condemned to pay the said heirs the amount of P20,000.00 in the form of moral damages and P10,000.00 for exemplary damages and is likewise ordered to pay the costs.

"For insufficiency of evidence and on grounds of reasonable doubt, Accused Romeo Paylago and Benjamin Alab are hereby acquitted and they are ordered immediately released, with costs de oficio."cralaw virtua1aw library

The People’s version of the facts is as follows:jgc:chanrobles.com.ph

"Sometime in July 1970, appellant Carlito Sadiwa, a farmer by occupation, and a resident of sitio Balatican, barrio Inclanay, Pinamalayan, Oriental Mindoro, visited his friend Leon Holgado at the latter’s residence in poblacion Pinamalayan, Oriental Mindoro, to inform him that he knew of a suitable land for sale in Mindoro for his (Holgado’s) uncle, Anastacio Castillo of Tanauan, Batangas, who was looking for a property to buy in that province (tsn., pp. 3-4, 7-9, Jan. 19, 1972). After viewing the property, Castillo found it rather small for his purpose but liking the land adjoining it requested Sadiwa to inquire if it was for sale (tsn., pp. 11-12, id; pp. 208-209, Jan. 18, 1972). Upon being informed that the adjoining land was for sale, Sadiwa, on September 4, 1970, went to see the owner, Visitacion Cahilig at her house in barrio Bambang, Pinamalayan, Oriental Mindoro. Upon being told by the owner that the land was already committed to Atty. Salvador Venturanza, Sadiwa left. (tsn., pp. 13-14, Jan. 19, 1972; pp. 6-7, July 7, 1971).

"Early in the morning of September 7, 1970, a Monday, Sadiwa returned to the house of Visitacion Cahilig, and asked if the sale to Atty. Venturanza was already consummated. Answering him in the affirmative, Visitacion told Sadiwa that she was taking her buyer to view the property. Sadiwa then asked her when, and Visitacion replied that she was visiting the land together with Atty. Venturanza between the hours of 3:00 o’clock and 4:00 o’clock that afternoon. (tsn., p. 7, July 7, 1971).

"At about 4:00 o’clock in the afternoon of September 7, Atty. Venturanza, along with his young son Eric, Geronimo Larga and Bernardo Ola, met Visitacion Cahilig and the latter’s niece, Nenita Cahilig, at the crossing of Pambisan in front of the school house and together they proceeded by jeep to sitio Pansalan, Inclanay, where the land was located. Upon reaching Inclanay, the group alighted from the jeep and hiked the rest of way to the land. The path was hilly and portions thereof were covered with cogon grasses and talahib bushes (tsn., pp. 8-9, July 7, 1971; pp. 48-49, July 28, 1971). Walking ahead of the group was Visitacion Cahilig, followed by Nenita Cahilig, Atty. Venturanza, the latter’s son, Bernardo Ola and Geronimo Larga, in that order. Suddenly, a shot rang out hitting Atty., Venturanza who fell in a sitting position, uttering: ‘Dios Ko, saklolohan ninyo ako, ako’y may tama.’ (tsn., pp. 9-10, July 7, 1971). Turning towards the direction where the shot came from, Nenita Cahilig and Bernardo Ola saw appellant standing some 12 meters away holding a long gun. (tsn., pp. 55-57, July 6, 1971; pp. 7-8, July 28, 1971). Bernardo Ola also saw a certain Pabling Chavez hiding behind a coconut tree also holding a gun. (Tsn., pp. 7-8, July 28, 1971). Whereupon, Ola crawled towards Atty. Venturanza and, placing the arms of the latter around his shoulders, started to pull him. After covering a distance of fifteen meters, three more shots were fired in rapid succession and they both laid down. As Venturanza was lying prostrate on the ground, Ola noticed that the former’s eyes, ears and mouth were bleeding. Leaving Atty. Venturanza, Ola picked up the victim’s son, and together they crawled away. In the meantime, Visitacion Cahilig, Nenita Cahilig and Geronimo Largo ran away. With Venturanza’s son, Ola hiked to Inclanay where they boarded a jeep to the poblacion and reported the matter to Atty. Romeo Venturanza, brother of the victim. Together with some PC soldiers, they returned to the scene of the crime and found Atty. Salvador Venturanza already dead, (tsn., pp. 7-11, July 28, 1971).

"An autopsy examination conducted by Dr. Aristeo Baldos, Municipal Health Officer of Pinamalayan, Oriental Mindoro, on the cadaver of Atty. Venturanza revealed that the latter sustained three gunshot wounds, all of them fatal, and that the cause of death was severe internal and external hemorrhages due to multiple wounds (Autopsy Report, Exh. A, p. 95, rec.; tsn., pp. 6-13, July 6, 1971). (Brief, pp. 2-5.)

Carlito Sadiwa assails the decision against him. He submits that the trial court committed the following errors:jgc:chanrobles.com.ph

"I. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF MURDER SINCE THE EVIDENCE ON RECORD DOES NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.

"II. THE TRIAL COURT ERRED IN FINDING THE PRESENCE OF THE AGGRAVATING CIRCUMSTANCES OF (i) EVIDENT PREMEDITATION AND (2) IN AN UNINHABITED PLACE."cralaw virtua1aw library

He prays that:jgc:chanrobles.com.ph

"1. The judgment of the trial court under review be reversed in toto, and appellant Carlito Sadiwa acquitted of the crime charged.

"2. Alternatively, in the event that this Honorable Court sustains the finding of the trial court that the crime was committed with the qualifying circumstance of treachery, that no aggravating circumstance be appreciated as there is no evidence to prove the same and that the appellant be sentenced to suffer the penalty of reclusion perpetua only."cralaw virtua1aw library

The first assignment of error, which involves an appreciation of the evidence, is not impressed with merit.

The appellant claims that he was at his house when the crime was committed but he does not press his alibi vigorously in his brief. His principal defense is that the evidence against him is weak because, it is said, it does not show beyond doubt that he committed the crime charged.

Carlito Sadiwa executed three statements wherein he admitted participation in the shooting of Salvador Venturanza. Exhibit C was sworn before Assistant Provincial Fiscal Gaudencio Sadicon on September 10, 1970; and Exhibits D and E were sworn before Municipal Judge Efre D. Villanueva on September 15, 1970.

It is true that the trial court expressed skepticism in respect of the confessions introduced by the prosecution in the following words:jgc:chanrobles.com.ph

"While the court does not subscribe in full to the theory of the defense of Alab and Sadiwa that they did not voluntary give their sworn statements, alleging that they were subjected to inhuman punishment by the investigating officers of the Philippine Constabulary, the fact that from the time of apprehension up to the time that they subscribed to their affidavits of admission, they were in the custody of the said officials who extracted from them their confession. That alone has engendered in the mind of the court some serious doubt as to the truth and correctness of said admission, taking into account that the subscribing officer in the case of the admission of Sadiwa, Fiscal Gaudencio Sadicon, was right in the barracks itself and accused Sadiwa was helpless, being a detainee thereat, if he would refuse to sign his written confession. The same is true as in the case of accused Alab. The Court is aware that the defense of threat and intimidation in the execution of voluntary confessions is a modus operandi of defense lawyers, but in the instant case, there is no gainsaying the fact that the accused are unlettered, not even a registered voter at that and therefore should be given the benefit of the doubt, with respect only to their admission taken by PC soldiers." (Decision, pp. 68-69.)

It should be noted, however, that apart from Exhibits C, D and E there is testimonial evidence pointing to the appellant as one of the perpetrators of the crime.

Nenita Monteras Cahilig, 34 years old, married and a resident of Pinamalayan, Oriental Mindoro, was one such witness. Her testimony as summarized by the trial court is as follows:chanrobles law library

"She knew the deceased Atty. Salvador Venturanza, who was practicing lawyer in Pinamalayan; aside from that, the deceased was Purchasing a land from her auntie, Visitacion Cahilig and it was in the house of the said deceased at the poblacion where she went with her auntie to talk about the sale of the land, that was on September 6, 1970 which was a Sunday. It was agreed upon that Atty. Salvador Venturanza would visit the land located at Pansulan Pinamalayan, this province, between 2 and 3 o’clock in the afternoon of the following day, September 7, 1970. She declared further that in the morning of September 7, 1970, she recalls that a person named Carlito Sadiwa, called on her auntie at Bambang, Pinamalayan, in inquiring if the land was really for sale and her auntie answered in the affirmative. Accused Sadiwa asked who was the prospective buyer and her auntie answered that it was Atty. Dading Venturanza; having informed Carlito Sadiwa that Atty. Venturanza would visit and buy the land, Accused Sadiwa asked her aunt the specific hour Atty. Venturanza would visit the land and he was told that it was that same day at 3 o’clock in the afternoon. Sadiwa, according to her, told her auntie further that should Atty. Venturanza fail to buy the land, he was willing to buy the same and left word that he could be contacted at his place in Dimasacat, located along the road at barrio Inclanay, Pinamalayan.

Continuing her direct examination, she stated that Atty. Salvador Venturanza arrived in their place around 4 o’clock in the afternoon, accompanied by a certain Ola, Visitacion Cahilig, a certain Geronimo and a child of Atty. Venturanza and proceeded to the land which was offered for sale; on the way she heard a shot and upon hearing the same, she turned her attention to the direction of Atty. Venturanza who was at the rear while Visitacion Cahilig was ahead of her, and noticed that the victim sat down and cried for succor, uttering, ‘Dios ko, saklolohan ninyo ako ako’y may tama; thereafter she looked towards the direction where the shot came from and saw Carlito Sadiwa at a distance of around 12 meters, holding a long gun and in a standing position. She further stated that the Carlito Sadiwa she saw that afternoon holding a gun was the same Carlito Sadiwa she saw in the house of her auntie at Bambang in the morning of the same day; having seen Carlito Sadiwa, she lied down and immediately thereafter she heard another shot, after which she ran. When Atty. Venturanza cried for help, Bernardo Ola went to his succor and when the second shot was fired, she ran and proceeded to her house.

"She admitted that a PC officer investigated her in connection with the murder of Atty. Venturanza at the PC barracks, in fact she executed a sworn statement, Exh. "H" and identified the same as her very affidavit. She added that while at the PC barracks, she saw Carlito Sadiwa arrive with the PC soldiers and she identified said accused to the PC soldiers present, telling them that he was the fellow who fired the shot. She stated further that in the place where Atty. Venturanza was shot, there were no houses within the area.

"On cross examination, she said that on September 4, 1970, Carlito Sadiwa went for the first time to her place at Bambang and on September 7, 1970, he returned to inquire from her auntie about the land the latter was offering for sale. The land according to her was mountainous, cogonal and with portions still covered with second growth forest, but the upper part was level. She said that the interval between the first and second shot was quite short, and after hearing the first shot, she said she looked back and saw Atty. Venturanza, thereafter she noticed Carlito Sadiwa standing, wearing a hat, with a long firearm, her distance to him being around 12 meters.

"On re-direct examination, she stated that when Carlito Sadiwa arrived in company with the PC soldiers at the barracks on September 9, 1970, he was still wearing moustache and sporting long hair. She admitted likewise to the court that during the conference had in the house of her auntie on the morning of September 7, 1970, she was face to face with Carlito Sadiwa at close range." (Decision, pp. 8-10.)

With respect to the shooting, her transcribed testimony reads:jgc:chanrobles.com.ph

" [FISCAL ENRIQUEZ]:chanrob1es virtual 1aw library

Q While you were proceeding towards the land which Atty. Venturanza was intending to visit because he was intending to purchase the same, do you know or do you remember of any unusual incident that took place?

A I remember, sir.

Q Please tell the Court?

A I remember that there was a shot, sir.

Q When you heard a shot, what did you do?

A I turned towards the direction of Atty. Venturanza, sir.

Q Why, where was Atty. Venturanza then in connection with your relative positions?

A He was at my rear, sir.

Q Who was ahead of you?

A Visitacion Cahilig, sir.

Q Who was following Atty. Venturanza?

A Bernardo Ola, sir.

Q And who was following Bernardo Ola?

A Geronimo Largo, sir.

Q Now, you stated that when you heard a shot, your first reaction was to turn around and you looked at Atty. Venturanza. When you looked at Atty. Venturanza, what did you see?

A I saw Atty. Venturanza sit down, sir.

Q Why did you turn your back to Atty. Venturanza?

A Because immediately after the shot, Atty. Venturanza cried for succor, sir.

Q More or less, what were the particular words he uttered calling for assistance?

A He uttered, ‘Diyos ko, saklolohan ninyo ako at ako’y may tama’, sir.

Q At that particular moment, what else happened?

A I look towards the direction where the shot came in and I saw Carlito Sadiwa, sir.

Q When you saw Carlito Sadiwa, how many meters, more or less, was the distance between you and Carlito Sadiwa?

A 12 meters more or less, sir.

Q When you saw Carlito Sadiwa, what were you able to observe from him?

A He was holding a gun, sir.

Q And what was his relative position?

A He was standing, sir.

COURT:chanrob1es virtual 1aw library

Q What kind of gun was he holding at that time?

A I saw that he was holding a long firearm, Your Honor. Proceed.

FISCAL ENRIQUEZ:chanrob1es virtual 1aw library

Q You stated that you saw Carlito Sadiwa holding a gun in a standing position near a coconut tree. Tell the Honorable Court what is the relation of Carlito Sadiwa, the accused in thus case, to Carlito Sadiwa whom you saw on that particular moment holding a gun and the Carlito Sadiwa whom yon were able to talk together with your auntie in connection with the purchase of the land?

A The Carlito Sadiwa I met in the morning is the same Carlito Sadiwa I saw in the afternoon, sir.

Q When you saw Carlito Sadiwa, what happened next, if any?

A I laid down, sir.

Q While you were lying down, what else happened, if any?

A There was another shot and after that second shot, I ran, sir.

Q You stated that after the first shot, you saw Atty. Venturanza sit down calling for succor or assistance. Do you know if anything or anybody rendered assistance?

A I saw someone sir.

Q Who?

A Bernardo Ola, sir?

COURT:chanrob1es virtual 1aw library

Q When you said Bernardo Ola, are you referring to Mamang Ola which you previously stated?

A Yes, your Honor.

Proceed

FISCAL ENRIQUEZ:chanrob1es virtual 1aw library

Q You stated that after the firing of the second shot, you ran away. Where did you go?

A I proceeded to my house, sir.

Q Were you able to arrive at your house?

A Yes, sir.

Q The following day, that is September 8, 1970, where did you go?

A I went here in Poblacion of Pinamalayan, sir.

Q And what did you learn in the Poblacion?

A I learned that Atty. Venturanza is already dead, sir." (TSN, July 6, 1971, pp. 55-58.)

The other witness was Bernardo Ola, 53 years old, married and also a resident of Pinamalayan, Oriental Mindoro. His testimony on the shooting as summarized by the trial court is as follows:jgc:chanrobles.com.ph

"He knew the deceased Atty. Salvador Venturanza, being his lawyer in all his cases, stating likewise that he knows all the accused, Romeo Paylago, Carlito Sadiwa and Benjamin Alab, all of whom were correctly pointed to by him in court. He said that on September 6, 1970, at around 4 o’clock in the afternoon, he was in the house of Atty. Venturanza with two women who were landowners talking about a certain parcel of land offered for sake and an agreement was reached to visit the land the following day, so that a 4 o’clock in the afternoon as agreed upon, they proceeded to visit the land, together with Geronimo Largo, Atty. Venturanza and the latter’s small child, and at the crossing of Pambisan, they met Visitacion and Nenita Cahilig and together, they proceeded to sitio Pansulan, Inclanay, where the land is located, but on the way, he heard a shot and when he looked over his shoulder, he saw Pabling Chavez hiding behind a coconut tree and accused Sadiwa who was by the right of Pabling Chavez, both of them holding guns which looked like carbine, his instance to the two being more or less 10 meters only, while the distance between Pabling Chavez and Sadiwa was 3 meters. After the first shot, he heard Atty. Venturanza say: "Compadre, may tama ako, saklolohan ako at si Eric’, for which reason he crawled towards where Atty. Venturanza was and as to the position of Atty. Venturanza when the latter cried for help, he said that the victim was in a semi-squatting position with the left hand pressed to his breast, and having placed the arms of Atty. Venturanza around his shoulders, he pulled him, covering approximately a distance of fifteen meters when he heard another shot and as far as he could remember, there were three successive shots, after which he and Atty. Venturanza lied down, and when the latter was lying prostrate on the ground, he notice that he was wounded, his eyes were bleeding as well as his ears and mouth. Thereafter, he picked up the child, left Atty. Venturanza and crawled away with the boy while Nenita Cahilig, Visitacion Cahilig and Geronimo Largo ran away. He stated further that when he saw Carlito Sadiwa holding a firearm, which was a carbine, he observed him to be with long hair and had a beard. Having picked up the son of Atty. Venturanza, he went to Inclanay where he called for a jeep to bring him to the poblacion to report the matter to Atty. Romeo Venturanza, brother of the deceased and upon arrival, they then proceeded to the Philippine Constabulary headquarters, and with PC soldiers, they went to the scene of the incident where they found Atty. Salvador Venturanza already dead, for which reason, the PC soldiers requested someone to get a hammock.

x       x       x


"On cross examination, he reiterated having proceeded to the house of Atty. Romeo Venturanza to report the incident and admitted that same night and up to the following day thereafter, he sought sanctuary in the PC barracks because he was afraid and where in the course of his stay, PC officers were interrogating him about the incident that transpired on September 7, 1970, but during the first night and the following few days, although he was being interrogated, he could not give any statement because his mind was confused, by reason of which he was unable to reveal what really happened in the afternoon of September 7, 1970. He stayed, according to him for more than a month at the barracks shortly after the incident, and although he did not reveal the facts of the case to the PC investigators, although he told everything to Fiscal Enriquez who required him to execute an affidavit, he did not do so and just told the Fiscal that he would give the narration in court. He denied being present when the PC authorities were interrogating Carlito Sadiwa and Benjamin Alab, but during his entire stay at the PC barracks, he had occasion to converse with Benjamin Alab and Carlito Sadiwa about the incident and the reason why he did not give any information to the PC authorities was that accused Romeo Paylago had a son-in-law who is a member of the PC outfit in Pinamalayan and now because he is telling the truth before the court, he is no longer afraid.

"He made it clear that the incident happened when they were already atop the hill, meaning on the level part thereof with the shots coming from his right, stating further that he saw Carlito Sadiwa wearing a balangot hat, a little bit covering his forehead, he had a very long hair and recognized Sadiwa as he had known him from the beginning us a resident of the barrio of Inclanay. Testifying further, he stated that there were many coconut trees within the vicinity of the incident, and there were likewise bushes, cogon and talahib grasses, but a little farther from the scene of the incident, there is a forested area and asked about the interval of the first shot to the three successive shots, that subsequently were fired, he could not tell, but he could state with certainty that after covering a distance of 15 meters, more or less, the 3 successive shots were fired. (Decision, pp. 12-17.)

The particular testimony of Bernardo Ola on the shooting reads:jgc:chanrobles.com.ph

" [FISCAL ENRIQUEZ]:chanrob1es virtual 1aw library

Q While you were proceeding on your way to visit the land which Atty. Venturanza was intending to purchase, what happened?

A I heard a shot, sir.

Q When you heard a shot, what did you do?

A I looked over my shoulder and I saw Pabling Chavez hiding behind a coconut tree, sir.

Q What else did you see?

A I likewise saw Carlito Sadiwa, sir.

Q Where was Carlito Sadiwa then?

A He was towards the right direction of Pabling Chavez, sir.

Q Is this Carlito Sadiwa the same Carlito Sadiwa you pointed to a while ago inside the courtroom?

A That man, sir. (Witness pointing to the accused Sadiwa).

Q When you saw Pabling Chavez and Carlito Sadiwa in the place you mentioned, what were you able to observe from them?

A Holding a gun, sir.

Q Both of them?

A Both, sir.

Q Could you tell more or less, the type or the kind of gun they were holding at the time?

A It looked like a carbine, sir.

Q Could you tell us more or less, your distance from the accused Carlito Sadiwa and Pabling Chavez when you heard a shot and you saw them?

A 10 meters more or less, only, sir.

Q How about Carlito Sadiwa which you stated was on the right side of Pabling Chavez, could you tell us more or less, the distance between Carlito Sadiwa and Pabling Chavez?

A 3 meters more or less, sir.

Q After that first shot and after you saw Pabling Chavez and the accused Carlito Sadiwa holding that gun, what else transpired?

A I heard Atty. Venturanza utter this wise: Compadre, may tama ako, saklolohan ako at si Eric.

Q When you heard that cry for help of Atty. Venturanza, what did you do?

A I crawled towards where Atty. Venturanza was and after reaching him I placed his hands around my shoulders, sir.

Q When Atty. Venturanza cried for help, what was his relative position then?

A He was in this position, sir. (Witness indicating the position by semi-squatting position with his right hand resting on the ground while the left hand was pressed to his breat.)

Q After you placed the arms of Atty. Venturanza around your shoulders, what else happened?

A I pulled him and after covering approximately a distance of 15 meters, I heard another shot coming from their direction.

Q How many shots did you hear?

A 3 successive shots, sir.

Q After those 3 successive shots and while the arms of Atty. Venturanza were on your shoulders, what happened to him?

A I lay down and Atty. Venturanza also lay down while I brushed aside the son of Atty. Venturanza.

Q When you and Atty. Venturanza were both lying prostrate on the ground, what were you able to observe from Atty. Venturanza?

A When the firing ceased, I tried to pull away Atty. Venturanza and when I noticed that he was wounded on his eyes and that his eyes were bleeding, including his ears and mouth, I picked up the child, left Atty. Venturanza and crawled away with the boy.

Q How about your companions, Nenita Cahilig, Visitacion Cahilig and Geronimo Largo, do you know where they were at the time?

A They run away, sir.

Q You said that you saw Carlito Sadiwa holding a firearm, which in your opinion was a carbine, aside from that, what else were you able to observe from the person of Carlito Sadiwa?

A His hair was long and his beard was also long, sir.

Q After picking up the son of Atty. Venturanza, where did you go?

A I ran towards barrio Inclanay, sir.

Q And after reaching Inclanay, where did you go?

A I called for a jeep and requested someone to bring me here to the poblacion to report that Atty. Venturanza was shot and reported the matter to Atty. Romeo Venturanza to the effect that Atty. Salvador Venturanza was shot.

Q After reporting the matter of Atty. Romeo Venturanza, what did the latter advise you, if he did advise you?

A He advised me to proceed directly to the PC and to hurry." (TSN, July 28, 1971, pp. 7-10.)

It should be explained that Pabling Chavez who was AL (at large) was one of the defendants named in the caption of the information. He was not included in the body of the information apparently because he was AL.

The testimony of Carlito Sadiwa as summarized in his brief is as follows:jgc:chanrobles.com.ph

"On or before September 7, 1970, he was residing in the land owned by Felipe Venturanza in Balatican, Inclanay, Pinamalayan; that he knows Leon Holgado who was the overseer of the land of Felipe Venturanza, uncle of the deceased Atty. Salvador Venturanza; and that he had a transaction with Leon Holgado who together with his uncle, Anastacio Castillo, saw appellant at his (appellant’s) place and appellant was asked to look for a rolling land for sale suited for calamansi. Appellant informed them of the land of Jimmy Reyes he was then overseering which was for sale. Appellant then inquired from Jimmy Reyes the price for the land and the latter told in that he would be willing to sell his land for P13,000.00. Appellant relayed this information to Leon Holgado. Thereafter, appellant and Leon Holgado went to Tanauan, Batangas to inform Anastacio Castillo that Jimmy Reyes was agreeable to sell his land for P13,000.00, (t.s.n., pp. 4-11, Hearing of January 19, 1972)

"At Tanauan, Batangas, Castillo told appellant that if there was another rolling land adjoining the land of Jimmy Reyes, Castillo would buy the same. Appellant looked for another land and having received information that the land of Visitacion Cahilig was for sale, he personally went to see her on September 4, 1970 at Bambang, Pinamalayan, Oriental Mindoro. When appellant met Visitacion Cahilig, the latter told him that her niece had already offered the land to someone else so appellant just went home. But in the morning of September 7, 1970, appellant went back to see Visitacion Cahilig to inquire from her if she had already conferred with her niece. Appellant again saw Visitacion Cahilig on September 7, 1970 because the latter told him to return on that particular day to talk on finalizing the transaction. Visitacion Cahilig also told him that she and her niece had no understanding yet as to whom Cahilig’s niece offered to sell the land. With that information, appellant asked Visitacion Cahilig to see him in his residence if the sale is not consummated with the prospective buyer. Appellant then proceeded home and plowed his field near his house up to 3:30 P.M. (t.s.n., pp. 11-19, Hearing of January 19, 1972)

"At around 6:00 or 6:30 in the evening of September 7, 1970, appellant went to his brother in Inclanay who was then a barrio captain. Upon reaching his brother’s place, appellant met a group of persons from whom he learned that Atty. Venturanza was shot on top of a hill. Appellant’s brother advised him to go home because there were P.C. soldiers in the mountain and his family might be afraid of them. (t.s.n., pp. 19-20, Hearing of January 19, 1972)

"The following day, September 8, appellant testified that he was in his place near his house plowing until afternoon and on September 9, 1970, he was also plowing near his house. In the afternoon of September 9, 1970, appellant’s brother summoned appellant to go to his brother’s place as P.C. soldiers would like to ask appellant some questions. At 3:00 o’clock in the afternoon, appellant proceeded to his brother’s place but was unable to reach his brother’s house because on the way, appellant met Sgt. Guinto of the P.C. and a police companion, Cpl. Regencia, riding on a jeep. Sgt. Guinto asked appellant to board the jeep and appellant was brought to the P.C. camp in Pinamalayan. Appellant described how he was severely maltreated and threatened to be killed by the PC soldiers which led him to submit unwilling statements and to involuntarily execute affidavits of admission. (t.s.n., pp. 21-56, Hearing of January 19, 1972)

"Asked by the trial court whether he knows how to read and write, appellant answered ‘no,’ and explained that he only knows how to write his name. Appellant admitted having finished Grade IV but he did not learn how to read. The last time appellant voted was in 1960 when he only copied from a sample ballot and after that he did not vote anymore. (t.s.n., pp. 58-59, Hearing of January 19, 1972)

"Appellant stated that he heard Nenita Cahilig when she testified and unequivocally declared that her testimony was false. Likewise, appellant denied the truth of the testimonies of Visitacion Cahilig and Bernardo Ola.

"Appellant stated also that he knows Bernardo Ola and the deceased, Atty. Salvador Venturanza, because the latter in fact appeared in a case, as counsel for his brother-in-law. Appellant further testified that there was no enmity existing between him and Atty. Venturanza. On the contrary, appellant was indebted to Atty. Venturanza because were it not for him appellant’s brother-in-law would now be in jail. Appellant admitted that he knows Visitacion Cahilig and Nenita Cahilig but he denied that he knew Geronimo Largo. Appellant admitted having acted as agent in a transaction involving the land of Jimmy Reyes with a certain Leon Holgado who testified in his favor. Appellant denied that in his two visits with Visitacion Cahilig at her house, appellant was told that Atty. Salvador Venturanza was going to visit Cahilig’s land on September 7, 1970 at around 4:00 o’clock in the afternoon. (t.s.n., pp. 92-110, Hearing of January 19, 1972)

"Testifying further, appellant declared that he was surprised when the P.C. soldiers arrested him. He reiterated that when he was in the P.C. barracks, he was maltreated by Sgt. Guinto and company. (t.s.n., pp. 120-132, Hearing of January 19, 1972)." (Appellant’s brief, pp. 15-17.)

The foregoing shows that the defense of the appellant is alibi. But such alibi, which is a weak but often invoked defense, has been destroyed by the testimony of Nenita Cahilig and Bernardo Ola who positively identified him as present and holding a long firearm at the scene when Atty. Venturanza was fatally shot several times. Cahilig and Ola had no reason to testify falsely against the appellant. Hence, their credibility cannot be seriously questioned.

The question of motive has been satisfactorily answered in the People’s brief as follows:jgc:chanrobles.com.ph

"As for the possible motive for the killing, the evidence discloses that appellant was bent on getting Visitacion Cahilig to sell her property to his buyer, thereby, making for himself some money from the transaction. But upon learning that the owner had already committed the land to Atty. Venturanza, appellant must have thought that the only way to stop the sale to Atty. Venturanza was to liquidate him. Of course, this may not be cause enough for most individual to kill another but persons have been known to commit crimes for lesser reasons than this. Besides, the question of motive is only important in cases where there is doubt as to whether the accused is or is not the person who committed the act (U.S. v. M’Mann, 4 Phil. 561, 563; People v. Divina Gracia, G.R. No. L-11060, March 13, 1959). But where the witnesses for the prosecution, though they did not actually see the shooting, heard the firing of shots and immediately thereafter saw appellant standing nearby with a carbine in hand, proof of motive is not indispensable." (Pp. 12-13)

The killing of Atty. Venturanza was qualified by treachery because the attack was sudden and gave him no chance to defend himself.

The trial court held that the murder was aggravated by evident premeditation and despoblado.chanrobles virtual lawlibrary

Both the appellant and the appellee agree that there was neither premeditation nor despoblado and they are right. There is no evidence that the killing of Atty. Venturanza was the result of meditation, calculation, reflection or persistent attempt. And there is likewise no evidence that the site of the killing was purposely selected so that succor would not be available. In fact, the victim was with several persons when he was shot.

The appropriate penalty for murder absent mitigating and aggravating circumstances is reclusion perpetua.

WHEREFORE, the judgment of the trial court is affirmed in all respects with the sole modification that the appellant shall suffer reclusion perpetua only. Costs de oficio.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro. Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

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