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People v. Tuvera : 149811 : June 8, 2004 : En Banc : Decision

People v. Tuvera : 149811 : June 8, 2004 : En Banc : Decision

PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. NO. 14981. June 8, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. RODOLFO TUVERA y NERI, Appellant,

D E C I S I O N

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Balaoan, La Union, Branch 34, in Criminal Case No. 2440 convicting appellant Rodolfo Tuvera y Neri of murder, imposing upon him the penalty of reclusion perpetuato death and ordering him to indemnify the heirs of the victim Orlando Tabafunda y Orfiano in the amount of P50,000.00.

Rodolfo Tuvera was charged of murder in an Information, the accusatory portion of which reads:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

That on or about the 1st day of March 1995 at about 3:00 oclock in the afternoon in Barangay Nagsabaran Sur, Municipality of Balaoan, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot with a short firearm Orlando Tabafunda y Orfiano thereby inflicting multiple gunshot wounds on said victim which cause[d] his death, to the damage and prejudice of the heirs of the same victim.

CONTRARY TO LAW.2 ςrνll

The appellant, with the assistance of counsel, pleaded not guilty to the crime charged.3

The Case for the Prosecution

At 3:00 p.m. on March 1, 1995, Pedro Pajarit, a farmer, left his house at Barangay Oya-oy, Bacnotan, La Union, and proceeded to Barangay Nagsabaran, Bacnotan, La Union to visit his friend Ricardo Obaa. Pajarit found Obaa in front of the Day Care Center with Cornelio Ablao, Carlito Obaa, Orlando Tabafunda and Arturo Gumangan. They decided to have a drinking spree and seated themselves in a round table, with Pajarit facing the east. Obaa bought San Miguel gin and half a gallon of the local wine basi. Pajarit noticed the appellant seated nearby, and invited him to join the group. The appellant obliged and drank wine. He offered a drink to Tabafunda but the latter refused. Momentarily, the appellant left and went to their house, which was only about fifty (50) meters away. He returned shortly, and seated himself near where Pajarit, Tabafunda and their friends were drinking.

Meanwhile, Tabafunda left the table and walked towards the direction of the north, only about four to five meters, to urinate. Tabafunda was on the northwestern side of Pajarit. The appellant, who was now armed with a handgun, stood up, followed Tabafunda. Gumangan could only watch as the appellant shot Tabafunda from behind. Pajarit turned towards where the gunshot came from and saw the appellant lowering his hand holding a firearm.4 Pajarit, likewise, saw Tabafunda running away. The appellant, still holding his gun, followed Tabafunda but left when the latter fell to the ground, face down, blood oozing from the left side of his back below his shoulder.5 ςrνll

The matter was reported to Barangay Captain Pepito Onido, who reported the incident to the Bacnotan police station. Municipal Health Officer Felicidad Ledda performed an autopsy on the cadaver of the victim and signed a post-mortem examination report containing the following findings:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

1. Gunshot wound, multiple (#9), upper back, L MCL in cluster approximately about 1-1.5 cms. apart, with a wound entrance measuring approximately 0.7 cm., with an average depth of about 2 cms.

The other 2, with a wound entrance measuring about 1.5 cms. with a depth of 1.5 cms. directed to the front and slightly downwards, injuring the left lower lobe, lung.

2. Hemothorax, L, massive.

Note: 3 slugs were recovered inside L thoracic cavity.

Conclusion: The cause of death is hemorrhage sec. to multiple GSW.6

The Case for the Appellant

The appellant testified that Pajarit, Tabafunda and himself, along with several other companions, were having a drinking spree. They invited Tabafunda to join them, but he refused. Momentarily, Tabafunda stood up and urinated nearby. Tabafunda then called the appellant and told the latter that he wanted to say something. When the appellant approached Tabafunda, the latter faced him, put his right hand on his shoulder and, with his left hand, poked a gun at the appellant. The appellant then held Tabafundas right hand which held the gun, and grappled for the possession of the weapon. Tabafunda then punched him on the face. The appellant managed to wrest the gun away, and when Tabafunda turned his back, the gun accidentally fired once. The appellant did not know if someone was hit, but he heard Tabafunda cry in pain and saw him run away. The appellant then threw away the gun. When he saw that Tabafundas companions had stood up, he became afraid that he would be attacked. The appellant fled from the place, towards the direction where Tabafunda had earlier run.

The appellant also recounted that he surrendered to the police authorities on March 3, 1995 in the company of Barangay Captain Pepito Onido. He claimed that he had no misunderstanding with Tabafunda and with those with whom he was drinking; hence, he had no motive to kill the victim.

After trial, the court rendered judgment convicting the appellant of murder qualified by treachery. The decretal portion of the decision reads:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the accused RODOLFO TUVERA y NERI guilty beyond reasonable doubt of the crime of MURDER as defined and penalized in Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, Sec. 6, and thereby sentences said accused to suffer the penalty of RECLUSION PERPETUA TO DEATH, and indemnify the heirs of the victim in the amount of P50,000.00.

SO ORDERED.7

The Present Appeal

The accused, now the appellant, assails the decision of the trial court contending that:

I

THE LOWER COURT ERRED IN FINDING THAT THERE WAS TREACHERY IN THE COMMISSION OF THE CRIME.

II

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF MURDER.8 ςrνll

The appellant contends that the prosecution failed to prove that he shot the victim and that even if he did so, the prosecution failed to prove the qualifying circumstance of treachery. He asserts that, as gleaned from the testimony of Pajarit and Gumangan, they did not actually see the appellant shoot the victim. He avers that the victim started the fight by poking his gun at him after he refused the victims invitation to drink because the latter was insulted by his rejection.The bare fact that the gunshot wound was at the back of the victim is not conclusive proof of treachery. He avers that the victim was shot at the back because immediately after he (the appellant) wrested possession of the gun, the victim suddenly turned his back towards him and the gun suddenly fired.

For its part, the Office of the Solicitor General (OSG) asserts that the prosecution was able to prove treachery, thus:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

First, prosecution witness Arturo Gumangan was firm in his assertion that appellant shot the victim at the back while the latter was urinating (TSN, September 17, 1997, pp. 8-9).

Second, the aforementioned attack from behind the victim is supported by the Post Mortem Examination Report issued by Dr. Felicidad Ledda who found that the victims cause of death was due to a gunshot wound at the back (Exh. F).

Third, the attack on the victim was without the slightest provocation on his part.

Fourth, to insure the execution of the act complained of, appellant launched the attack from behind and even appellants companions were caught off-guard [People v. Carpio, 282 SCRA 23 (1997)]. What is decisive in the mode of attack from behind made it impossible for the victim to defend himself or to retaliate [People v. Jose, 324 SCRA 197 (2000)].9

The Courts Ruling

The contentions of the appellant have no merit.

The prosecution adduced proof beyond reasonable doubt that the appellant shot the victim while the latter was urinating. Arturo Gumangan testified that he saw the appellant follow the victim and shoot the latter from behind, at a distance of about seven (7) meters. Even as the victim fled from the place where he was shot, the appellant followed him and left only after the victim had fallen to the ground, on the verge of death. The testimony of Gumangan reads:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QAnd while you were drinking as you said, do you recall if there was an unusual thing that happened?chanroblesvirtualawlibrary

AThere was, Sir.

QWhat was that?chanroblesvirtualawlibrary

AThe thing that happened to Orlando Tabafunda.

QWhat do you mean that happened to Orlando Tabafunda?chanroblesvirtualawlibrary

AHe was shot, Sir.

QWhere exactly, at what place was Orlando shot?chanroblesvirtualawlibrary

AOn the north side, Sir.

QHow far was he in the table around you, where Orlando Tabafunda was shot?chanroblesvirtualawlibrary

AFrom here up to the western wall of the courtroom, a distance of about seven (7) meters, more or less.

QWhere did Orlando Tabafunda go when you said that he was shot seven (7) meters from the table?chanroblesvirtualawlibrary

AHe went to urinate, Sir.

QIn relation of (sic) the table, where was Orlando Tabafunda shot?chanroblesvirtualawlibrary

ANorthwest, Sir.

QAnd you said that Orlando Tabafunda went to urinate, what did he do to you when he went to urinate, what actually did he do?chanroblesvirtualawlibrary

AI saw him actually urinated.

QIn relation to the table, where did you position yourself?chanroblesvirtualawlibrary

AOn the eastern part of the table, Sir.

QWhen you said east somewhere north, to what direction were you facing?chanroblesvirtualawlibrary

AI was facing northwest, Sir.

QAnd you said that Orlando Tabafunda was urinating, to what direction was he facing at the time?chanroblesvirtualawlibrary

ANorthwest, Sir.

QHow about the accused Rodolfo Tuvera, in relation to the place where Orlando Tabafunda was urinating, where was he?chanroblesvirtualawlibrary

AHe was then sitting here. (Witness pointing to the south of the table)

QWhat did Rodolfo Tuvera do, if any, when Orlando Tabafunda went to urinate?chanroblesvirtualawlibrary

AThere was, Sir.

QCould you tell the Court what he did?chanroblesvirtualawlibrary

AHe shot Orlando Tabafunda, Sir.

QAlright, where was Rodolfo Tuvera in relation to Orlando who was then urinating when you said Rodolfo Tuvera shot Orlando?chanroblesvirtualawlibrary

ABehind Orlando Tabafunda, Sir.

QAnd when Rodolfo Tuvera went behind Orlando, did you see him?chanroblesvirtualawlibrary

AYes, Sir.

QAnd could you demonstrate to the Court how Rodolfo Tuvera positioned himself at the back of Orlando Tabafunda when he shot him?chanroblesvirtualawlibrary

AYes, Sir.

COURT INTERPRETER:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Like this, witness standing right to the west raises his right hand extend forward in front parallel to the ground.

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QHow many times did Rodolfo Tuvera shoot Orlando Tabafunda?chanroblesvirtualawlibrary

AOnce only, Sir.

QDid you notice the weapon that was used in shooting Orlando Tabafunda?chanroblesvirtualawlibrary

AYes, Sir.

QCould you describe it to the Court?chanroblesvirtualawlibrary

AI dont know the kind but as long as this, Sir. [Witness indicating a foot (sic).]

QDid you notice the barrel, long or what?chanroblesvirtualawlibrary

AIt was long, the barrel was big.

QWhat part of the body of Orlando Tabafunda was hit?chanroblesvirtualawlibrary

AHis back, Sir.

QWhat particular part of the back was hit?chanroblesvirtualawlibrary

AOn the left side, Sir. (Witness touching the left side at the back)

QAt the time Rodolfo Tuvera raised his gun and fired to this Orlando Tabafunda, what was Orlando Tabafunda actually doing at that time?chanroblesvirtualawlibrary

AHe was urinating, Sir.

QSitting down or what?chanroblesvirtualawlibrary

AStanding, Sir.

QTo what direction was he facing at the time Orlando Tabafunda was urinating?chanroblesvirtualawlibrary

ANorthwest, Sir.

QWhat did Rodolfo Tuvera say, if any, before he shot Orlando Tabafunda?chanroblesvirtualawlibrary

ANone, Sir.

QHow about this Orlando Tabafunda, what did he say, if any, before he was shot?chanroblesvirtualawlibrary

ANone, Sir.

QWhen Orlando Tabafunda was shot, what happened next?chanroblesvirtualawlibrary

AHe ran, Sir.

QTo what direction was Orlando Tabafunda running?chanroblesvirtualawlibrary

A[He] proceeded westward then to the south.

QHow about you, what did you do when you saw Rodolfo Tuvera shot Orlando Tabafunda and Orlando Tabafunda ran away?chanroblesvirtualawlibrary

AWe went to follow them because Rodolfo Tuvera was chasing him, Sir.

QSo, you are trying to tell the Court that when Orlando Tabafunda was shot and he ran, he was followed by Rodolfo Tuvera?chanroblesvirtualawlibrary

AYes, Sir.

QAnd what did Rodolfo Tuvera do aside from running after Orlando?chanroblesvirtualawlibrary

ANo more, he just went to see Orlando Tabafunda, Sir.

QYou mean, Rodolfo Tuvera was able to catch up with Orlando Tabafunda?chanroblesvirtualawlibrary

AYes, because Orlando Tabafunda tripped and fell on his face.

QFrom the place where he was chased to the place where he fell when he was chased by Rodolfo Tuvera, how far?chanroblesvirtualawlibrary

AFrom the place where he was shot and to the place where Orlando Tabafunda was urinating, from here up to the national road. The distance is about 40 meters, more or less.

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

May we know if the counsel for the defense will admit.

ATTY. LAUDENORIO:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Yes.

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QYou said that if you take the distance in (sic) straight way, how did Orlando Tabafunda run, was it straight or what?chanroblesvirtualawlibrary

AHe was running in a zigzagging manner directly west and later turned to the south, Sir.

QAnd were you able to reach the two?chanroblesvirtualawlibrary

AYes, Sir.

QWhat did Rodolfo Tuvera do when you were able to reach them?chanroblesvirtualawlibrary

AHe just looked at Orlando Tabafunda who was then shaking, Sir.

QDo you know why Orlando Tabafunda was shaking at that time?chanroblesvirtualawlibrary

AI know, Sir.

QWhy?chanroblesvirtualawlibrary

ABecause of his gunshot wound and he was dying at the time.

QAfter looking at Orlando Tabafunda lying and trembling, what did he do?chanroblesvirtualawlibrary

AHe ran away, Sir.

QTo what direction did he run?chanroblesvirtualawlibrary

ANorth, Sir.10 ςrνll

For his part, Pajarit testified that he heard a gunshot and when he looked in the direction where the gunfire emanated from, he saw the appellant lowering his hand, which held a gun:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QAnd you said that you were there at the Day Care Center at Brgy. Nagsabaran Sur,Balaoan, La Union, what were you doing there?chanroblesvirtualawlibrary

AWe were drinking, Sir.

QDrinking what?chanroblesvirtualawlibrary

AThe local basi and the San Miguel Gin, Sir.

QNow, when did you start drinking wine at the Day Care Center?chanroblesvirtualawlibrary

A3:00 oclock in the afternoon, Sir.

QNow, while you were there at the Day Care Center at around 3:00 oclock of March 1, 1995, do you recall if there was anything unusual that happened?chanroblesvirtualawlibrary

AYes, Sir. There was, Sir.

QWhat was that unusual incident that happened, will you please tell the Court?chanroblesvirtualawlibrary

AA shooting, Sir.

QAnd where exactly did the shooting happen?chanroblesvirtualawlibrary

AAt the side of the Day Care Center, Sir.

QAnd you said, shooting. What was the cause of the shooting or what was used in the shooting?chanroblesvirtualawlibrary

AWell, it was a shot, Sir.

QWhere were you exactly when you heard the shot?chanroblesvirtualawlibrary

AI was in front of the Day Care Center, Sir.

QYou were sitting, standing up or what?chanroblesvirtualawlibrary

AI was sitting, Sir.

QWhile sitting there, to what direction were you facing?chanroblesvirtualawlibrary

AAt the east, Sir.

QAnd you heard the shot which emanated, as you said, at the side of the Day Care Center. In relation to you, where is (sic) that shot that you heard?chanroblesvirtualawlibrary

AIt came from the northwest, Sir.

QAnd what did you do when you heard the shot?chanroblesvirtualawlibrary

AI looked to see because I was taken aback, Sir.

QAnd to what direction did you look?chanroblesvirtualawlibrary

ANorthwest, Sir.

QAnd what did you see, if any?chanroblesvirtualawlibrary

ARodolfo Tuvera was already lowering down with (sic) his gun, Sir.

[Witness with his right hand on the label (sic) of his waist, puts it down or lower (sic) it]

QAnd you said that Rodolfo Tuvera, do you know personally this person to whom you said you saw lowering his gun?chanroblesvirtualawlibrary

AYes, Sir. He is my friend, Sir.

QAnd for how long has he been your friend?chanroblesvirtualawlibrary

AFor a long time already, Sir.

QCould you say 20 years?chanroblesvirtualawlibrary

ANo, Sir.

Q10 years?chanroblesvirtualawlibrary

A10 years, Sir.

QAnd do you know from where is this Rodolfo Tuvera?chanroblesvirtualawlibrary

AYes, Sir.

QWhere, from where is he?chanroblesvirtualawlibrary

AFrom Nagsabaran Sur, Balaoan, La Union, Sir.

QIf this Rodolfo Tuvera is shown to you now, could (sic) you be able to identify him?chanroblesvirtualawlibrary

AYes, Sir.

QCould you please look round inside the courtroom if he is in Court now?chanroblesvirtualawlibrary

AThat one, Sir. (Witness pointing to someone and said that one in green shirt according to him)

COURT:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

You are pointed to (sic) as Rodolfo Tuvera.

INTERPRETER:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Somebody was pointed by the witness and ask (sic) to point if he knows Rolando Tuvera and the Honorable Presiding Judge asked said man as pointed to by the witness to stand up and identify himself and Court Interpreter asked his name and he identified himself as Rodolfo Tuvera, Your Honor.

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QAside from being a friend, are you related to Rodolfo Tuvera?chanroblesvirtualawlibrary

ANo, Sir.

QWhen you saw Rodolfo Tuvera lowering his gun as you said, what happened next?chanroblesvirtualawlibrary

AThe one who was shot ran in a zigzag manner, Sir.

QWho is this person whom you said was shot and was running in a zigzag manner?chanroblesvirtualawlibrary

AOrlando Tabafunda, Sir.

QYou said that Orlando Tabafunda was shot, why do you say that?chanroblesvirtualawlibrary

AWell, his back was already bloodied, that was what I saw, Sir.

QThe first time that you saw Orlando Tabafunda, what was his position?chanroblesvirtualawlibrary

AHe was urinating facing northwest, Sir.

QAnd how about this Rodolfo Tuvera, the first time that you saw him, where was he in relation to Orlando Tabafunda?chanroblesvirtualawlibrary

AHe was at the back of Orlando Tabafunda, Sir.

QCould you please stand up?chanroblesvirtualawlibrary

A(Witness demonstrates to the Court, taking the Court Interpreter as Orlando Tabafunda and you are Rodolfo Tuvera)

QCould you please show to the Court the relative position at the time that you saw them for the first time?chanroblesvirtualawlibrary

A(Witness positioned the Court Interpreter to face the northwest as he is standing taking the role of Orlando Tabafunda. Witness now positioned himself obliquely a little to the back of Orlando Tabafunda just farther away, just a little farther away than one meter to the back when I looked at them, Rodolfo Tuvera was already lowering his gun from a parallel position to a perpendicular position with his right hand pointing towards the northwest)

ATTY. CABADING:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

May we request the Court Interpreter to correct, Your Honor, to interpret only what has been said. Now, the witness mentioned that he lowered his gun, imbabana. That is all, Your Honor.

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

In the demonstration, he was directly (sic) the arm towards Orlando Tabafunda and then he lowered it, Your Honor. So he is just stating the demonstration, Your Honor.11 ςrνll

The appellant admitted, when he testified, that after taking possession of the gun from the victim, the latter turned his back towards him and, at that instance, the gun he (the appellant) was holding had fired, hitting the victim who fled. The appellant also fled and threw the gun away:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

QWhat was the reason why, if you know that Orlando Tabafunda turned his back to you at the time you were in possession of the gun?chanroblesvirtualawlibrary

AMaybe the gun (sic) was already in my possession, he must have been afraid, Sir.

QHow far was Orlando Tabafunda at the time the gun fired?chanroblesvirtualawlibrary

AMaybe just more than a meter away.

QYou were holding a firearm at the time?chanroblesvirtualawlibrary

AYes, Sir.

QWill you tell the Court what was your position when the gun fired?chanroblesvirtualawlibrary

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

He was still thinking.

AMaybe it is only like this: I was able to grab it from him, I must have been holding this way. (Witness with his left hand holding the lower part of the left hand holding the gun and a position a little bit slanting towards the ground).

QWe understand from you that you were holding the handle of the firearm at the time?chanroblesvirtualawlibrary

FISCAL TECAN:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

The witness is again thinking it over.

AMaybe, Sir.

QYou are very sure of the pointing (sic) is slanting towards the ground at the time the gun fired?chanroblesvirtualawlibrary

AI dont know, Sir.

QHow many times did the gun fire?chanroblesvirtualawlibrary

AOnly once, Sir.

QWhat happened with Orlando Tabafunda at the time the gun fired?chanroblesvirtualawlibrary

AHe said, annay koand then ran away.

QBut the firearm you were holding, you keep (sic) it into your waist, is it not?chanroblesvirtualawlibrary

ANo, Sir.

QWhat did you do with it?chanroblesvirtualawlibrary

AI threw it near us the (sic) place, Sir.

QAfter that, you ran away?chanroblesvirtualawlibrary

AYes, Sir.12 ςrνll

The testimonies of Pajarit and Gumangan are corroborated by the post-mortem report of Dr. Felicidad Ledda13 showing that the nine entrance wounds sustained by the victim were located on his back.14 The appellant must have used an automatic gun because the victim sustained nine wounds. The doctor recovered three slugs from the body of the victim.

We agree with the trial court and the OSG that the appellant killed the victim with treachery. The victim was urinating, impervious of the appellants plan to kill him. The appellant approached the victim from behind and shot him, hitting the latter on the left side of the back. The victim sustained no less than nine wounds. The attack was sudden and unexpected, leaving the victim with no means to defend himself or to avert the appellants attack.The appellant adopted a mode of attack to insure the consummation of the crime by shooting the victim from behind. The appellants claim that the victim owned the gun is flimsy. If the claim of the appellant were true, he should have surrendered the gun to the police authorities. He did not. He threw away the gun. Moreover, Pajarit testified that shortly before the appellant shot the victim, the appellant went home and returned shortly afterwards. The appellant must have purposely done so to get his gun; and, shortly thereafter, shot the victim. In sum then, the appellant is guilty of murder under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, qualified by treachery.

The Proper Penalty

The trial court manifested its gross ignorance of the law in sentencing the appellant to reclusion perpetuato death for murder. Where the penalty imposed by law for the crime consists of two indivisible penalties, the trial court must apply Article 63 of the Revised Penal Code which reads:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Art. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.

3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.

The trial court ignored the above-cited provision and sentenced the appellant to suffer reclusion perpetuato death despite the presence of the generic mitigating circumstance of voluntary surrender. Even if the appellant is not entitled to any mitigating circumstance, the correct penalty should only be reclusion perpetua, absent any generic aggravating circumstance attendant to the crime. Trial judges must bear in mind that, as important as the duty to determine the guilt or innocence of the accused, is the duty to impose the correct penalty on the accused especially in those cases where the imposable penalty is reclusion perpetua, or life imprisonment, or the death penalty. Penalties of imprisonment involve the liberty of the accused. For the trial court to deprive the accused of his liberty without legal basis is a travesty.

The felony of murder is punishable by reclusion perpetua to death. The appellant is entitled to the mitigating circumstance of voluntary surrender. While the Information alleges that the appellant used a firearm to kill the victim, it does not allege that the appellant had no license to possess the firearm.Neither did the prosecution prove that the appellant had no such license to possess the firearm. Being an element of the crime of unlawful possession of a firearm and a qualifying circumstance in murder or homicide, such circumstance must be alleged in the Information as mandated by Section 8, Rule 10 of the Rules of Court and proved by the prosecution.15 Hence, the use by the appellant of an unlicensed firearm to kill the victim should not be considered against him. Consequently, the appellant should be sentenced to suffer the penalty ofreclusion perpetua, conformably to Article 63 of the Revised Penal Code.

The Civil Liabilities of the Appellant

The trial court correctly ordered the appellant to pay P50,000.00 as civil indemnity to the heirs of the victim. The trial court is, likewise, correct in not ordering the appellant to pay moral damages to the victims heirs. The prosecution failed to present any witness to prove the factual basis for such award.However, the trial court should have awarded temperate damages to the heirs of the victim. The records show that the parties stipulated that the heirs of the victim spent P19,000.00 for his burial. Since the amount of actual damages proved is less than P25,000.00, the heirs are entitled to P25,000.00 as temperate damages conformably with current jurisprudence.16 ςrνll

IN LIGHT OF ALL THE FOREGOING, the appellant Rodolfo Tuvera y Neri is found GUILTY beyond reasonable doubt of murder under Article 248 of the Revised Penal Code, as amended, and is hereby sentenced to suffer the penalty of reclusion perpetua. The appellant is ORDERED to pay the heirs of the victim Orlando Tabafunda the amount of P50,000.00 as civil indemnity, and P25,000.00 as temperate damages. No costs.

Let a copy of this Decision be furnished to the Court Administrator for possible administrative charges against Judge Senecio O. Tan.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales, Azcuna, and TINGA, JJ., concur.

Endnotes:


1 Penned by Judge Senecio O. Tan.

2 Records, p. 1

3 Id. at 16.

4 Exhibit B, Records, p. 208.

5 Ibid.

6 Exhibit F, Records, p. 211.

7 Rollo, p. 49.

8 Id. at 33.

9 Id. at 72-73.

10 TSN, 17 September 1997, pp. 7-12.

11 TSN, 2 October 1996, pp. 5-11.

12 TSN, 13 January 1999, pp. 9-10.

13 Exhibit F, supra.

14 Ibid.

15 SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

16 Per Court deliberations on October 14, 2003.

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