G.R. No. L-17531. November 30, 1962
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. NORBERTO ROGALES, DEFENDANT AND APPELLANT.
BAUTISTA ANGELO, J.:
First Instance of Masbate having been sentenced to suffer cadena
perpetua, to indemnify the heirs of the deceased in the sum of P6,000.00,
and to pay the costs. From this decision he appealed.
At about ten o’clock in the evening of June 10, 1958, while a dance was being
held in the yard of Elpidio Rogales situated in Balud, Masbate, during the
celebration of a novena for the soul of the latter’s deceased uncle,
Aladino Besana, who was one of those who attended the dance, was suddenly fired
upon by his cousin Norberto Rogales from a distance of five brazas.
Besana slowly sank to a sitting position whereupon Norberto Rogales fired
another shot which however failed to hit him.
Attracted by the shots, Salvador Andrade came from a house nearby and saw
Besana in a sitting position while Norberto Rogales mounted his horse and sped
away. Andrade asked Besana why he was shot to which the latter replied that
Rogales shot him although he had done him no wrong. Besana was then carried to
his house still alive although he remarked on the way that he was very weak
because of his wounds. His nephew Felizardo Baclayo and his brother Wenceslao
Besana reported the incident to the chief of police who sent Cpl. Eutiquio
Corsiga to investigate. Cpl. Corsiga, the sanitary inspector, and another
policeman repaired to the wounded man’s house, where the corporal took down in
writing Besana’s statement which he thumbmarked with his own blood. Besana was
later brought to the municipal building where he related to the chief of police
how he was shot. Upon the advice of Dr. Serudo, municipal health officer, Besana
was brought to the Masbate Provincial Hospital where he died three hours later
due to severe internal hemorrhage. The autopsy performed upon Besana’s body
revealed the following wounds:
“1. Gunshot wound, entrance, 3/4 inch in diameter with a contusion colar of
about 1 mm, lateral border, elbow, right.2. Gunshot wound, exit, about 3/4 inch in diameter, medial surface, elbow,
right.3. Wound, circular, sutured, at level of 7th intercestal space, along the
anterior axillary line, right, penetrating abdominal cavity.“Internally:
1. Circular wounds, thru and thru, at the following internal organs:
a. right lobe of liver
b. posterior surface, cardiac portion of the stomach.
c. spleenic flexure of the large intestine.
2. Bullet slug, lodged at the 8th intercostal space left, just beneath the
skin, along the mid-axillary line.”
Appellant’s version of the incident indicates that he acted in self-defense.
He stated that the deceased immediately prior to the incident was drunk
challenging everybody in the dance hall. He then approached the deceased
admonishing him to stop making trouble. The deceased did not mind him and
instead took out a gun with his left hand and pointed it to appellant. Appellant
held the deceased left hand with his right, twisting it, as he held the
deceased’s right hand with his left. Appellant then held the barrel of the gun
which was stuck at the right side of the deceased at which juncture the gun
fired, and when the deceased started to fall down appellant went home proceeding
later to the PC barracks at Masbate to report the incident.
This version cannot be entertained not only because it is belied by the
overwhelming evidence of the prosecution but it runs counter to the very
demonstration made in court by appellant and his corroborating witness who all
but proved the improbability of the infliction of the wounds in the manner shown
which were the immediate cause of death. Indeed, the shooting of the deceased by
appellant in the manner claimed by the prosecution is attested by no less than
six witnesses whose credibility can hardly be disputed because of their
disinterestedness. These witnesses are: Felizardo Baclayo, a nephey of
appellant; Salvador Andrade, appellant’s first cousin, Police Chief Dioscoro
Inojas and Cpl. Eutiquio Corsiga, who intervened in the case in obedience to
their duty as agents of the law, Dr. Alejandro F. Almario, resident physician of
the Masbate Provincial Hospital, and Corazon Francisco, the victim’s widow. In
addition, we may mention the ante-mortem statement made by the victim
hours before his death which points to appellant as the one who fired the shots.
And it cannot be disputed that such statement partakes of the nature of a dying
declaration because he made it when his hope for survival was very slim. In
fact, he died a few hours after the incident.
The attempt made by appellant to show that he acted in self-defense proved
futile for the same is refuted by the very demonstration he and his
corroborating witness made in court. Despite the efforts they made during the
demonstration to substantiate their theory, the lower court observed that the
gun which allegedly was wielded by the victim pointed to directions other than
the trajectory of the wound as found by the doctor who performed the autopsy.
The story and the demonstration only serve to underscore the physical
impossibility of defense’s version as may be gleaned from the following
observation made by the trial court:
“In the demonstration made by the accused and his witness Gonzales, the Court
keenly observed with deep interest, the position of the gun when the same was
allegedly touching the right arm of the deceased. The accused, demonstrating,
allegedly parried with his right hand, by making a movement from left to right,
the left hand of the victim, and then with his two hands held the left hand of
Aladino holding the gun, twisted the hand towards inside of the body with both
hands, and with his left hand he held the right hand of the victim, and his
right hand holding no longer the left hand of Besana but the barrel of the gun
to make it land at the right arm and at that position the gun fired. The
position of the gun when the barrel was stuck to the right arm was observed
carefully by the Court in both demonstrations as pointing downwards and not
sidewards. To cause the gun to point to the side so as to coincide with the
trajectory of the bullet as found by Dr. Almario was to do it forcibly and
intentionally, which would become artificial, and unnatural. Even in the two
demonstrations, one by Norberto Rogales and Enrico Gonzales the barrel of the
gun were pointing downwards and not sidewards. This makes the story of the
struggle for the gun, the grappling for the weapon a concoction, devised to
coincide with the trajectory of the bullet inside the victim’s body.“The accused and his witness during the demonstration was observed by the
Court, when they were holding the barrel of the gun to make it appear, with
special effort, that the same would be a sidewise position to adjust with the
known trajectory of the bullet as found by Dr. Almario, but unfortunately for
them because of the ackwardness of the position in so doing, the barrel was
always pointing downward. What was unadjustable could not be adjusted. What
cannot be done could not properly be done. Still, inspite of their effort to so
effect their purpose to suit with the reality as found by the expert, the
position continued to be in the natural position for the barrel of the gun to
point downward. Under that situation the barrel of the gun, if naturally or
ordinarily placed must necessarily point downward and never sidewise unless
deliberately and purposely executed to fulfill a pre-determined position, which
would be out of the natural and the ordinary. This court is led to believe and
with reason that the story of the accused and his witness as to the struggle for
the gun was composed and rehearsed not to say
bluntly,—fabricated.”
A circumstance which further discredits the story of the defense is the fact
that no powder burns were found by the doctor on the wounds of the victim which
are usually found when the fire is done at close range, which absence rather
confirms the prosecution’s claim that appellant fired at his victim at a
distance of five brazas. Indeed, if it were true that the victim was
drunk so much so that he was challenging everybody in the dance hall a commotion
would have resulted and the dance would have been interrupted, but as the
evidence shows, with the exception of the wounding of the deceased who was
immediately taken to his house by some bystanders, the dance went on as if
nothing had happened.
The pretense that the court erred in considering treachery as a qualifying
circumstance must fail for no other conclusion can be drawn considering the
suddenness with which appellant fired at his victim While the dance was going
on, appellant suddenly showed up, and without much ado fired two shots at
Aladino Besana who was one of the bystanders.
It is true that the prosecution failed to establish any motive for appellant
to fire at and kill the deceased who was his cousin, but motive is not
absolutely necessary to pin appellant’s liability. Proof of motive is essential
only in case of doubt as to the identity of the killer; not so when the killer’s
liability is established by clear, positive and direct evidence.[1]
The defense finds error in the fact that the trial court failed to consider
in favor of appellant the mitigating circumstances of voluntary surrender and
passion and obfus-cation caused by the drunken state in which the deceased was
then found immediately before the shooting. But appellant failed to establish
the existence of these mitigating circumstances. In the first place, it was not
proven to the satisfaction of the court that the deceased was then drunk, and,
in the second, appellant did not go to the PC headquarters after the shooting to
surrender but merely to report the incident. Indeed, he never evinced any desire
to own the responsibility for the killing of the deceased.
We agree with counsel that the aggravating circumstance of premeditation and
nocturnity were improperly considered by the trial court because the evidence is
not sufficient to show the former while the latter is already deemed absorbed by
treachery. However, the result would remain the same for, in the absence of any
modifying circumstance, the proper penalty would be reclusion perpetua,
which is the one imposed by the trial court.
With the modification that the accused be sentenced to reclusion
perpetua, not cadena perpetua as employed by the trial court, we
hereby affirm the judgment of the trial court in all other respects, with costs
against appellant.
Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., Barrera,
Paredes, Dizon, Regala, and Makalintal, JJ., concur.
[1] People vs. Miranda, 40 Off. Gaz., (2) 259; People
vs. Cagauan, et al., 94 Phil., 118; 50 Off. Gaz. (1) 124; People vs. Sespene,
102 Phil., 199; People vs. Bugagao, L-11328, April 16, 1958; People vs.
Divinagracia, 105 Phil., 281; People vs. Arcillas, L-11792, June 30, 1959;
People vs. Luna, 110 Phil., 932, 59 Off. Gaz. [22] 3439; People vs. Corpuz, et
al., 107 Phil., 44; 57 Off. 16, 2904.