That on or about August 25, 2002, in the City of Zamboanga, Philippines and within the jurisdiction of this Honorable Court, the above named accused, armed with a knife, by means of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously, assault, attack and stab from behind with the use of said weapon that he was then armed with, at the person of ROBELYN ROJAS y MALLARI, employing means, manner and form which tended directly and specially to insure its execution without any danger to the person of the accused, and as a result of which attack, the said Robelyn Rojas y Mallari sustained stabbed wound on the fatal part of the latter's body which directly caused his death to the damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.
Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed on August 25, 2002 at Cabato Lane, Gov. Camins, Zamboanga City. Post mortem examination conducted by Dr. Jamella Marbella, Medical Officer V of Zamboanga City Health Office showed that Robelyn Rojas sustained the following injuries:1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm. gaping located at 5 cm. from spine below the left sub-scapular region. 19 cm. deep upward towards axilla, and 11 cm. deep downward towards left flank region.
2. Linear abrasion 5.5 cm. in length at the left lateral aspect of left arm (Ex. "B").
The cause of his death was cardio pulmonary arrest probably secondary to hemorrhagic shock secondary to stab wound, penetrating left back (Exh. "A-1").
Prosecution witness Ramil Gregorio y Toribio, 24 years old, single, testified that on August 25, 2002, at about 3:00 o'clock in the afternoon, he together with Jovel Veñales, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas were drinking tuba at Cabato Lane, near Acapulco Drive, Governor Camins, Zamboanga City. Four of them were sitting on a chair leaning on a concrete wall while two of their companions sat on the ground. They have just started drinking when Benancio Mortera, Jr. arrived. He wanted to hit Alberto Rojas with a Nescafe glass. Alberto Rojas ran away. Mortera said, "Sayang." He listened while the group of Ramil Gregorio were (sic) singing accompanied by a guitar. Jomer Diaz, brother-in-law of Alberto Diaz, arrived. He bought something from a store five meters away from the place where Gregorio and his companions were drinking. Mortera said, "Here comes another Rojas." Gregorio and his companions told Jomer Diaz to run away. Mortera hurled a stone at Diaz but the latter was not hit. Mortera left but he said that he will return. After a few minutes, Mortera came back. When Jomer Diaz ran, Robelyn Rojas, brother of Alberto Rojas went to Jomer. Mortera met Robelyn at a distance of about seven meters from the place where Ramil Gregorio and his companions were drinking. Mortera and Robelyn discussed with each other. After their discussion, Mortera and Robelyn shook hands. Robelyn turned his face and walked three steps. Mortera suddenly stabbed Robelyn Rojas at the back with a knife about 9 inches long. Robelyn was hit at the back. After stabbing Robelyn, Mortera ran away. Robelyn Rojas tried to chase Mortera but he was not able to catch up with the latter. Robelyn fell down mortally wounded. He was brought to the hospital by his brother Ricky but he was [pronounced] dead on arrival at the hospital (Exh. "A").
Jovel Veñales y Bandian, 23 years old, who was drinking together with Ramil Gregorio, Archie Saavedra, John Carpio, Plong Siano and Alberto Rojas, in the afternoon of August 25, 2002 corroborated Ramil Gregorio's testimony.
Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of Robelyn Rojas y Mallari. She testified that Robelyn is one of her eight children. xxx She was at work at Zamboanga Puericulture Lying-in Maternity Hospital as laundry woman when her daughter Marilyn called her by telephone informing her that Robelyn was stabbed. She went to Western Mindanao Medical Center where she saw Robelyn already dead with stab wound at the back. At past 6:00 o'clock in the evening, Robelyn's body was brought to Remedios Funeral Parlor. Mrs. Rojas testified that she spent a total of Php38,653.00 in connection with her son's death (Exh. "J"; "J-1", "J-1-A" to "J-1-V").
WHEREFORE, the Court finds the accused BENANCIO MORTERA, JR. Y BELARMINO GUILTY BEYOND REASONABLE DOUBT of the crime of murder, as principal, for the unjustified killing of Robelyn Rojas y Mallari and SENTENCES said accused to suffer the penalty of RECLUSION PERPETUA and its accessory penalties, to pay the heirs of the victim Php50, 000.00 as indemnity for his death; Php50,000.00 as moral damages; Php30,000.00 as exemplary damages; Php38,653.00 as actual damages; and to pay the costs.
SO ORDERED.
WHEREFORE, in view of the foregoing, the Decision dated January 16, 2007 in Criminal Case No. 19311 finding accused-appellant guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua and its accessory penalties is hereby AFFIRMED WITH MODIFICATION that accused-appellant is ORDERED to pay the heirs of victim Robelyn Rojas the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages in lieu of actual damages, and P25,000 as exemplary damages; and costs.
SO ORDERED.
DIRECT EXAMINATION ON THE WITNESS VENANCIO MORTERA, JR. COURT: Q: During the arraignment you said you did not kill this Robelyn Rojas. Did you say that? A: Yes, Your Honor. COURT: And, it's here where the accused interposed a negative defense because, you said you have nothing to do with the death of Robelyn Rojas. WITNESS: As far as I could remember Your Honor, he hit me then I fell down then he still approached me so what I did, I was able to thrust my knife. COURT: Q: You were suggesting that you might have killed him in self-defense? A: Yes, Your Honor. Q: As if there is something wrong to your story last February 6, 2004, you invoked a negative defense? A: Not intentional. Q: So, you are changing your story now? ... From a negative defense you are now asserting affirmative defense? A: He hit me first then I fell down just the same he continued approaching me so I was able to do it? COURT: In effect, while you were in the middle of the river you are changing boat and when you change boat in the middle of the river, sometimes you get drowned. Because you told even your own lawyer Atty. Mendoza, said that you interpose a negative defense that is why we did not have reverse trial. You were not even telling the truth to Atty. Mendoza. Because had you told him the truth, it could have been... Q: Why did Atty. Mendoza, invoke negative defense? A: Yes, Your Honor. ATTY. MENDOZA: Yes, Your Honor, I insisted that, in fact, he told me that he don't [sic] know that person by that name... COURT: Well, if he had nothing to do with the death of said person, negative defense. So, if you are not telling the truth to your lawyer, how would I know now that you are telling the truth?... Anyway if you killed a person you will have to pay for it Mr. Mortera, do you agree also? WITNESS: Yes, Your Honor. COURT: So, cross-examination. PROSECUTOR LEDESMA: CROSS EXAMINATION ON THE WITNESS VENANCIO MORTERA, Jr. Prosecutor Ledesma: xxx Q: And you said earlier that it was this Tingay [deceased] who attacked you with this spray gun then you fell down? A: Yes. Then he still approached me and at the same time asked money and I asked "for what?" ... Then he said, for their vices. Q: You were having this conversation while you were down? A: Not yet. Q: He was holding the spray gun on his hand, correct? A: Yes. Q: Then you said while you were down you were able to thrust your knife upward, correct? A: Well, after hitting me, when I was already down he was still approaching me and wanted to hit me again. Q: Yes, approaching you and in the process of hitting you, that was the time that you thrusted [sic] the knife, correct? A: Yes. Q: And it was you, who advanced personally that you were able to hit him, correct? A: Yes. COURT: Q: You felt the blade of the knife slicing a person? A: Yes, Your Honor. Q: As if the knife hit a pig you were used to selling? A: That knife is stainless used in cutting rope. Q: It's a long white knife? A: Not so long Your Honor Q: But, enough to kill a person? A: Somewhat like that Your Honor. Q: But, not enough to kill a pig? A: No, Your Honor. That is only used in cutting rope. Q: Where is that evil knife? A: Well, it is in the place at Bagsakan where we are having a place. COURT: You tell them to throw it away or bury that knife because that is a bad knife. So long as that knife is there the one in possession of that will always have bad luck. It is cursed. Eventually, Tingay is already dead. Q: Did your uncle also tell you that Tingay, sustained a single wound at his back? A: Yes. COURT: Q: So, when you stabbed him he was trying to hit you with a very small spray gun. How was it that he was hit at the back? A: Well, when he was in the act of hitting me again, I thrusted [sic] the knife to... shall we say towards him Your Honor. Q: That is why, it is impossible because if he was trying to hit you with a spray gun, you thrusted [sic] the knife towards him, how was it that he was hit at the back? A: He was hit Your Honor, when he was in the act of hitting me again. COURT: Proceed, Atty. Ledesma. xxx COURT: Robelyn Rojas, was 23 years old when you killed him. WITNESS: I do not know the age. COURT: Of course, you do not know. The life span of a Filipino now is about 70 years old, Fiscal? .. Because we expect that long. So, if you did not kill him he will still have 47 years to live. PROSECUTOR LEDESMA: I believed [sic] 80 years Your Honor. COURT: 80 for purposes of compensation. PROSECUTOR LEDESMA: Yes. COURT: He has 57 years more to live. That is the trouble of killing people because you are depriving the person of his right to live and even if what you are saying is true, you could not have been killed with that small spray gun... You have no right to stab him. Besides, that is not what your witness said even your own witness here is not supporting your story. Who is that witness? WITNESS: Denden Macasantos... COURT: Yes, Denden Macasantos. He did not declare what you are saying now. You are just making a story. Q: So, even the story of your witness who I think was telling the truth, don't [sic] support your story Mr. Mortera... Your story now is different... Did you hear Denden? A: Yes. Q: They did not tell the same story as you are saying now about the spray gun being used to hit you? A: I do not know with them Your Honor, but in my case I was really hit with that spray gun. Q: Were you injured? A: No. Q: That's the whole trouble. Why will you have injury when you were not hit? A: I was hit Your Honor. Q: You were hit? A: Yes, I fell down and he continued approaching me. COURT: You did more than what Robelyn, did to you. You killed him. Proceed. PROSECUTOR LEDESMA: Q: You did not report to the police that incident involving Tingay and his group, correct? A: Yes, I did not. Q: Instead, you immediately left for Ayala? A: Well, after the incident I ran away towards Ayala. COURT: Q: By your running away because you were afraid, you were committing something wrong? A: That is why, I ran away I have done something I was able to kill somebody. Q: Why did you run to Ayala then run to Lintangan then return to Acapulco Drive, knowing that you have a Warrant of Arrest, you went back to Lintangan? ... Because you felt guilty? A: Yes, Your Honor. Q: Robelyn, has seven brothers and sisters? ... So, maybe you should have some vacation in Jail you are supposed to serve? A: Yes. (Italics supplied)
The Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking clarificatory questions, the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of trial... hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta.... The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate... A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from the common standard of fairness and impartiality. (emphasis added)
In the instant case, accused-appellant claims that there was unlawful aggression on the part Robelyn Rojas when the latter allegedly hit him with a spray gun. However, except this self-serving statement, no other evidence was presented to prove that indeed he was hit by Robelyn. Accused-appellant failed to show where he was hit and what injuries he sustained, if any. Moreover, his own defense witness Roden Macasantos did not see him being hit by a spray gun. On the contrary, the prosecution has clearly shown that before Robelyn was stabbed, the two even discussed with each other and accused-appellant even shook hands with him. Moreover, if indeed it was true that Robelyn was carrying a spray gun and tried to hit him, accused-appellant, while he was in a supine position, could have easily just flaunted his knife to scare his alleged attackers away. On the other hand, even if we assume to be true that he was in a supine position when he thrust the knife at his attacker, it is however impossible that the back of Robelyn would be hit, unless the latter could also fell (sic) on his back, which is again far from reality. In a myriad of cases, it has been ruled that the location, number or seriousness of the stab or hack wounds inflicted on the victim are important indicia which may disprove accused's plea of self defense. In the instant case, it is clear that the victim was stabbed at the back negating any indication that accused-appellant acted in self defense.
Endnotes:
1 Penned by Justice Rodrigo F. Lim Jr. and concurred in by Justices Michael P. Elbinias and Ruben C. Ayson, CA rollo, pp.126-146.
2 Penned by Judge Jesus C. Carbon, Jr.
3 Appellant's Brief, CA rollo, p. 1, supra note 1.
4 Records, p. 1.
5 Id. at 19.
6 CA rollo, pp. 55-57.
7 Records, p. 20.
8 TSN, February 17, 2005, p. 14.
9 Id. at 4-9.
10 TSN, November 25, 2004, pp. 2-10.
11 Records, pp. 107-108.
12 Both the accused and the OSG manifested that they were dispensing with the filing of supplemental briefs and submitting the case for decision based on the briefs they had filed with the CA.
13 G.R. Nos. 103501-03, G.R. No. 103507, February 17, 1997, 268 SCRA 332.
14 Rule 119, Section 11. The trial shall proceed in the following order:
x x x x
(e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified.
15 People v. Unarce, G.R. No. 120549, April 4, 1997, 270 SCRA 756.
16 G.R. No. L-46272, June 13, 1986, 142 SCRA 295.
17 Novicio v. People, G.R. No. 163331, August 29, 2008, 563 SCRA 680.
18 People v. Barriga, G.R. No. 178545 September 29, 2008,567 SCRA 65.
19 People v. Se, G.R. No. 152966, March 17, 2004, 425 SCRA 725.
20 People v. Elmer Peralta y Hidalgo, G..R. No. 187531, October 16, 2009; and People v. Antonio Dalisay y Destresa, G.R. No. 188100, November 25, 2009.