PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PO1 AVELINO ANE, ACCUSED-APPELLANT.
LOPEZ, J.:
“WHEREFORE, premises considered, judgment is hereby rendered finding the accused, PO1 AVELINO ANE, GUILTY BEYOND REASONABLE DOUBT for the crime of HOMICIDE. He is hereby sentenced to suffer an indeterminate penalty of Eight (8) Years and One (1) day of PRISION MAYOR as MINIMUM to Fourteen (14) Years, Eight (8) Months and One (1) day of Reclusion Temporal as MAXIMUM.
Accused is further ordered to pay the heirs of the victim the amount of P50,000.00 as Death Compensation, P50,000.00 as Moral Damages and P70,000.00 as Actual Damages.
The accused is credited in full of his entire period of detention.
The Surety Bond posted by the accused for his provisional liberty undertaken by Industrial Insurance Company is hereby ordered cancelled and the accused ordered detained.
The following exhibits which were involved in this case and submitted to the court are ordered confiscated in favor of the government, to wit:
1) magazine pouch (Exh. “G”); 2) magazine containing seven (7) live ammunitions (Exh. “H”) 3) magazine containing six (6) live ammunitions (Exh. “I”) 4) plastic bag containing six (6) live ammunitions (Exh. “J”); 5) plastic bag containing one (1) live ammunition (Exh. “K”) 6) plastic bag containing three (3) live ammunitions (Exh. “L”); 7) plastic bag containing four (4) empty shells (Exh. “P”); 8) plastic bag containing three (3) test bullets (Exh. “Q”); 9) .45 cal. (Colt) with serial no. 7417429 (Exh. “T”); 10) plastic bag containing one (1) magazine (Exh. “U”); 11) plastic bag containing three (3) test bullets (Exh. “V”) The .45 cal. (Thompson) with serial number AOC 38784 (Exh. “O”) being a government officially-issued firearm, the same shall be turned over to the proper authorities only upon proper request.
The Warden of the Bureau of Jail Management and Penology (BJMP), Ungka, Jaro, Iloilo City, is hereby ordered to remit the accused to the National Bilibid Prison the soonest time possible.
SO ORDERED.”
Accused PO1 Avelino Ane was charged with Murder in an Information[2] dated May 15, 2002 which reads as follows:
“That on or about January 12, 2002, in the City of Iloilo, Philippines, and within the jurisdiction of this Court, said accused, without any justifiable motive and with a decided purpose to kill and taking advantage of superior strength, with treachery and evident premeditation, did then and there willfully, unlawfully and criminally shot, hit and injure Bernard Acap with the gun with which herein accused was provided at the time, thereby causing upon said Bernard Acap gunshot wounds which caused his death thereafter.
CONTRARY TO LAW.”
After his arrest, accused was detained at the Iloilo City District Jail.[3] On August 13, 2002, accused was arraigned with the assistance of Atty. Hector P. Teodosio and pleaded not guilty to the crime charged.[4] At the pre-trial conference, accused interposed self-defense and the parties agreed to a reverse trial[5] which thereafter ensued. In the middle of the proceedings, accused filed a Motion to Admit Bail[6] which, after a hearing conducted thereon, was granted by the trial court per Order[7] of June 18, 2007.
The Evidence for the Accused-Appellant
The defense presented five (5) witnesses, namely: Mary Lou Capundan, Kristine Ann Ane, Ruby Ane, P/Chief Inspector Angela Leoncito Baldevieso and Dr. Owen J. Lebaquin. Accused himself also testified in his defense.
Mary Lou Capundan declared that she was at the plaza of Arevalo at about 8:00 in the evening of January 12, 2002 walking around watching the games and disco together with her gangmates. While she was at the plaza, accused, who was at one of kiosks, called out to her. She approached him and he told her that if she happened to see his wife and children to please tell them that he was waiting at the kiosk.[8] While she continued to walk around the plaza, she saw the wife and children of accused so she told them where accused was waiting.[9] After walking around the plaza, she and her friends went to the kiosk to eat. She saw accused eating with his family[10] and she saw the victim approach the table where accused was. The victim had a gun pointed towards accused whose back was facing the victim. She then saw accused hand over his son, who was then sitting on his father’s lap, to his wife and faced the victim with both his hands raised. She heard accused tell the victim “Cap, I am a policeman. Why are you pointing your gun at me?” to which the victim replied “What do you want?” At this point, accused stepped forward and parried the gun held by the victim which fired.[11] She then saw accused draw his firearm which was tucked in his waist. She ran away when she heard burst of gunfire.[12] When she looked back she saw accused hiding behind a car with his daughter. She saw the victim shooting at accused who ran towards the public market.[13]
Kristine Ann Ane stated that accused is her father and that at about 6:00 in the evening of January 12, 2002, she was at home with her older sister, Honey Lee, when their mother arrived, telling them that they were going to the house of their grandmother. Their mother also told them that their father was waiting for them at the plaza.[14] When they arrived at their grandmother’s house, their father was there and they all went to the plaza together with their younger brother and first cousin.[15] There, they played roletas while her father went to the kiosk to order food and eat.[16] They then followed their father to the kiosk where they sat down to eat. While they were eating, the victim arrived holding a firearm. Her father stood up with both hands raised and the victim asked “What do you want, sir?” Her father said “Cap, I am a policeman, why are you aiming your gun at me?” Her father stepped forward and parried the victim’s gun which fired.[17] Her father ran towards a car and she heard several more gunshots. She also ran towards the car where her father was and they both hid behind it. She saw her father and the victim shooting at each other.[18] Her father then told her to run so she ran towards the playground.[19]
Ruby Ane declared that she is the wife of the accused and in the evening of January 12, 2002 she went to the plaza with her husband and three (3) children to play at the rolettas.[20] While at the plaza, her husband left to go to a kiosk while she and the children played. After a while, she saw Marylou Capundan who told her that her husband was waiting for her and their children at a kiosk. She and her children arrived at the kiosk where her husband was waiting and they all ate dinner together.[21] As they were eating, the victim approached with a gun pointed at her husband. Her husband passed their son, who was then sitting on his lap, to her as he stood up with raised hands saying “I am a policeman, why are you pointing your gun to me?[22] The victim answered, “Maano ka?” (What do you want?). She saw her husband parry the gun and then she heard several shots fired. Upon hearing the sound of gunshots, she and her son ran towards the playground. Her daughter, Kristine, at first hid behind a car before joining them at the playground. She saw her husband running towards the public market of Arevalo.[23]
Accused testified at after his duty at Camp Delgado where he slept the night before, he arrived at Barangay Arevalo in the morning of January 12, 2002 and had breakfast at his mother-in-law’s restaurant.[24] Later in the evening, he went to the plaza of Arevalo together with his wife and children where they played the “roleta”. They also watched the disco happening nearby.[25] After some time, he went to a kiosk and ordered food for his family. He saw Marilou Capundan and told her to tell his wife and children that he is waiting at the kiosk with the food ready.[26] While they were eating, he suddenly noticed people scampering away and he heard someone shouting “who are you?” When he turned around, he saw Captain Bernard Acap pointing a gun at him. He passed his son, who was on his lap, to his wife as he stood up to face Captain Acap with hands raised.[27] He told the Captain, “Captain, I am a policeman, why are you pointing a gun at me?” to which Captain Acap replied, “Why, what do you want?” When accused heard the release of the gun’s safety pin, he parried the victim’s gun which fired. The victim’s companions drew their firearms, prompting accused to also draw his firearm.[28] They all exchanged fire and accused hid behind an automobile with his daughter. He then ran towards the Arevalo public market.[29] The next day, he surrendered to the authorities in a compound near his house.[30]
P/Chief Inspector Baldevieso declared that she is also a forensic chemist and she conducted a paraffin examination as to the presence of gunpowder nitrates on the victim, Bernard Acap.[31] The results of her examination, as embodied in Chemistry Report No. 0-011-02, indicated that both of the victim’s hands were positive for the presence of gunpowder nitrates.[32] With such positive result, it was possible that the victim fired a gun.[33]
Dr. Owen Lebaquin stated he conducted the autopsy on the cadaver of the victim, Bernard Acap, the results of which were indicated in the medico-legal report attached to the record of the case.[34] He also performed a paraffin cast on both of the victim’s hands which he turned over to P/Chief Inspector Baldevieso for examination.[35]
After the witnesses’ testimonies, the defense formally offered[36] Exhibits “1” to “3” and “4”[37] as rebuttal evidence.
The Evidence for the Plaintiff-Appellee
The prosecution presented eight (8) witnesses, namely: Rowena Robles, Dorben Acap, Jr., Dr. Owen J. Lebaquin, Freddie Tingson, SPO3 Gorge Rojo, SPO2 Patrick Gelpe, PO2 Rex Wendam and P/Supt. Georby C. Manuel. While the widow, Marites Acap, was called to the witness stand, her testimony was dispensed with after the parties agreed to stipulate on amount of damages and the civil liability.[38]
Rowena Robles testified that she is a long-time resident of Arevalo, Iloilo City. In the evening of January 12, 2002, she was attending to her kiosk at the plaza of Arevalo selling beer and barbecue. The fiesta of Arevalo was forthcoming so there were kiosks in the plaza.[39] Inside her kiosk were tables and chairs as well as a videoke machine.[40] At around 10:30 in the evening of January 12, 2002, the accused, who was in her kiosk together with three (3) male companions,[41] started throwing bottles of beer at the road fronting her kiosk. He also told her to call Bernard Acap and when the latter arrived, the accused immediately pushed and fired a shot at him (Acap).[42] When she called Bernard Acap, she told him there were persons in her kiosk throwing bottles at the road.[43] When accused shot Bernard Acap, she immediately sat down and she no longer knew what happened afterwards.[44] She only knows that Bernard Acap was hit because she saw blood coming out (of him).[45]
Dorben Acap, Jr. stated that the victim, Bernard Acap, was his uncle and that, in the evening of January 12, 2002, they were at the ABC Hall at Arevalo, Iloilo City. They were waiting for the manager of a company who will be giving the prize for the opening salvo of the fiesta celebration.[46] That evening, a woman, who introduced herself as a concerned citizen, arrived at the ABC Hall and informed him and Barangay Captain Acap that there were persons throwing empty bottles. He and Bernard Acap, together with one Rodrigo Acac who is now deceased, all went to the place of incident. When they arrived, a person, later identified as the accused, immediately pulled out his firearm and shot Barangay Captain Acap. The accused claimed that Barangay Captain Acap was the one responsible for his (accused) drug test.[47] Accused also shot at him and Rodrigo Acac before fleeing. When accused had left, he and his companion then brought the bloodied victim to the Iloilo Doctor’s Hospital. However, the hospital staff was not able to save the life of Barangay Captain Acap.[48]
Dr. Owen Lebaquin testified that he conducted the autopsy on the cadaver of the victim, Bernard Acap. Based on his examination, the cause of death was hemorrhage due to a gunshot wound in the chest area of the victim.[49] The said gunshot wound was the only one sustained by the victim and which caused his death.[50]
Freddie Tingson declared that he knows both the accused and the victim as he has been a long-time resident of Sta. Felomina, Arevalo, Iloilo City.[51] At about 10:00 to 10:30 in the morning of January 12, 2002, he was on a multicab in front of the barangay hall of Sta. Felomina in Arevalo when accused approached him and asked if he was the one who conducted a drug test on him (accused). He told the accused that he was not the one as he observed that accused was somewhat angry. They then saw Bernard Acap pass by and stop a few meters away. Accused then said, in the same somewhat angry manner, that maybe it was Bernard Acap who asked for the drug test.[52] He later knew that a shooting incident involving Bernard Acap and the accused had occurred in the plaza.[53]
SPO3 Gorge Rojo stated that in the evening of January 12, 2002, he was on-duty at the Arevalo Police Station 6 when he received information about a commotion along Bonifacio Street in Arevalo.[54] When he and other police officers PS/Insp. Ramir Perlas, SPO1 Patrick Gelpe, PO3 Roger Gallon, PO2 Jojo Tabaloc arrived at the scene, they heard successive bursts of gunfire and saw an injured person lying on the street whom they later identified as Barangay Captain Bernard Acap.[55] At the scene, they also recovered several pieces of evidence which they listed in the police blotter.[56] After an initial investigation, they learned that the suspect was the accused so they conducted a hot pursuit operation. The accused was arrested in the morning of January 13, 2002 at his residence in Barangay St. Felomina.[57] At the time of his arrest, accused had in his possession one (1) pistol caliber .45 Thompson with serial no. AOC38784 and several magazines with live ammunitions.[58]
SPO2 Patrick Gelpe corroborated the statements of SPO3 Rojo and narrated that at the time of arrest, accused was under his house, half naked with mud all over his back.[59] When the police officers pointed their gun at him, accused went out and allowed himself to be frisked. A firearm was located from under the house where accused was found.[60]
PO2 Rex Wendam identified the items recovered in relation to the case for murder filed against accused[61] and P/Supt. Georby Manuel explained how he conducted a firearms investigation on the firearms recovered.[62]
After the testimony of the witnesses, the prosecution formally offered[63] Exhibits “A” to “W” which were admitted by the court a quo.[64]
On July 24, 2009, the RTC Branch 23, Iloilo City rendered its assailed Decision convicting the accused of Homicide for lack of evidence to support the qualifying circumstances alleged in the Information.
Accused filed a Motion for Reconsideration[65] which was denied in the Order66 of December 23, 2010. His Notice of Appeal[67] was given due course by the trial court per Order of January 7, 2011.[68]
In his appeal before Us, accused-appellant made the following assignment of errors, to wit:[69]
I
THE LOWER COURT ERRED IN HOLDING THAT THERE WAS NO UNLAWFUL AGGRESSION ON THE PART OF BERNARD ACAP;
II
THE LOWER COURT ERRED IN HOLDING THAT, BECAUSE THE ACCUSED ADMITTED HAVING SHOT THE VICTIM, THERE IS UNLAWFUL AGGRESSION ON THE PART OF THE ACCUSED-APPELLANT; and
III
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF HOMICIDE, CONSIDERING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
Our Ruling
The appeal is without merit.
By invoking self-defense, accused-appellant admitted committing the felonies for which he was charged albeit under circumstances which, if proven, would justify his commission of the crimes.[70]
Under Article 11 (1) of the Revised Penal Code, the following are the requisites for a valid self-defense claim:
“ART. 11. Justifying circumstances.––The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.”
Unlawful aggression is an indispensable element of self-defense. We explained, “Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.” It would “presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person––not a mere threatening or intimidating attitude––but most importantly, at the time the defensive action was taken against the aggressor. x x x There is aggression in contemplation of the law only when the one attacked faces real and immediate threat to one’s life. The peril sought to be avoided must be imminent and actual, not just speculative.”[71]
As rightly held by the trial court, accused-appellant failed to establish unlawful aggression on the part of the victim, Bernard Acap. Indeed, mere pointing of the gun by the victim at the accused is not an act of physical aggression and could not be considered indicative of an intent to kill.
Based on the evidence presented, the victim, as barangay head, was at the plaza to oversee the activities going on in anticipation of the fiesta of Barangay Mohon, Arevalo, Iloilo City. He approached accused-appellant upon a complaint that the latter was throwing beer bottles towards the road. Accused-appellant contended that the victim was pointing a gun at him with the safety latch supposedly already released and that he parried the victim’s gun. Before he parried the victim’s gun, however, the victim at that point, had not committed any imminent act that would imperil accused-appellant’s life. As pointed out by the trial court, the release of the safety latch, without any words or further action to indicate an intended attack on accused-appellant, does not even constitute an act of aggression for purposes of self-defense. In fact, even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that one’s life was in imminent danger. Hence, a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.[72]
As aptly observed by the trial court:
“If indeed the intention of the victim was to shoot the accused, the victim could have easily done it without waiting for the accused to turn around, give his son to his wife and even inquire as to the reason why the victim was pointing the gun at him. The exchanges of words between them was but a confrontation, whether it pertains to the incident regarding the throwing of empty bottles or for any other reasons, but definitely, there was no danger yet to the life or limb of the accused. The words uttered by the victim “sin-o ka?” (“who are you”) and “ma-ano ka?” (“what do you want?”) cannot even be considered as part of aggression, for they were more of an inquiry or a question on the purpose. It runs counter to human behavior for if the victim was indeed vent on killing the accused, there’s no necessity to make those utterances for he could easily fire the gun without exchanges of words. Furthermore, mere pointing of a gun to another person, in the absence of any indicia of intent of the person pointing does not necessarily mean that the intent to kill is present for it might have been pointed to threaten the other. Intent to kill must be accompanied by some overt act manifesting such intent.”
The trial court cannot be faulted for giving more credence to the prosecution’s evidence which inspires more belief and credulity as to the circumstances surrounding the shooting incident. The rule is that when the credibility of a witness is in issue, the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect.[73] The recognized rule in this jurisdiction is that the “assessment of the credibility of witnesses is a domain best left to the trial court judge because of his unique opportunity to observe their deportment and demeanor on the witness stand”.[74]
Indeed, the findings of the trial court on the credibility of witnesses are accorded great weight and respect – even considered as conclusive and binding – since the trial judge had the unique opportunity to observe the witness firsthand and note his demeanor, conduct and attitude under grueling examination. Only the trial judge can observe the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh of a witness, or his scant or full realization of an oath – all of which are useful aids for an accurate determination of a witness’ honesty and sincerity. He can thus be expected to determine with reasonable discretion which testimony is acceptable and which witness is worthy of belief.
Absent any showing that the trial court’s calibration of the credibility of the witnesses was flawed, its assessment is binding and must be sustained unless it can be shown that the trial court ignored, overlooked, misunderstood, misappreciated, or misapplied substantial facts and circumstances, which, if considered, would materially affect the result of the case.[75]
Accused-appellant had not adduced clear and convincing evidence of the victim’s unlawful aggression. He had not presented credible evidence of why the victim, who was a Barangay Captain and President of the Association of Barangay Captains in Arevalo district, would suddenly confront him and point a gun at him.
On the other hand, the prosecution had established that accused-appellant had been throwing empty bottles, prompting the victim to confront accused-appellant. Being the Barangay Captain, the victim had the right and the duty to oversee the peace and order situation in the area. The prosecution had likewise established a reason for accused-appellant to kill the victim after he learned that the victim could have been responsible for the drug testing on him (accused-appellant).
In sum, accused-appellant had not discharged his burden of proving that he acted in self-defense while the prosecution had duly established his guilt beyond reasonable doubt. No evidence had been adduced to support accused-appellant’s claim of a shootout. While the victim was, indeed, positive for the gunpowder nitrates, this was explained by accused-appellant’s own testimony that the victim’s gun fired after he parried it. Moreover, contrary to accused-appellant’s claim of voluntary surrender, he went into hiding and was arrested under his house only on the day following the incident. At the time of his arrest, he was even armed and had several magazines of live ammunition.
Jurisprudence laid out the elements of homicide as: (1) a person was killed; (2) the accused killed him without any justifying circumstance; (3) the accused had the intention to kill, which is presumed; and (4) the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.[76]
These elements are all present in this case. The victim died due to hemorrhage from a through-and-through gun shot wound in the chest. As earlier discussed, accused-appellant had not established unlawful aggression on the part of the victim. Without unlawful aggression, which is the indispensable foundation of self-defense,[77] accused-appellant had no basis for invoking such defense.
WHEREFORE, the appeal is DENIED. The July 24, 2009 Decision rendered by the Regional Trial Court, Branch 23, Iloilo City is AFFIRMED.
SO ORDERED.
Ingles, J., Chairman, and Lagura-Yap, JJ., concur.
[1] Record, page 923.
[2] Record, page 1.
[3] Record, page 76.
[4] Record, page 91.
[5] Pre-Trial Order, Record, page 113.
[6] Record, page 386.
[7] Record, page 587.
[8] TSN, October 1, 2002, pp. 4-5.
[9] Id., at page 6.
[10] Id., at page 7.
[11] Id. at page 9.
[12] Id., at page 10.
[13] Id., at pp. 11-13.
[14] Id., at pp. 32-33.
[15] Id., at pp. 34-35.
[16] Id., at pp. 35-36.
[17] Id., at pp. 35-38.
[18] Id., at pp. 38-40.
[19] Id., at pp. 40-41.
[20] TSN, October 10, 2002, pp. 32 and 41-42.
[21] Id., at pp. 44-46.
[22] Id., at pp. 47-48.
[23] Id., at page 48.
[24] TSN, July 15, 2003, pp. 3-5.
[25] Id., at pp. 8-9.
[26] Id., at page 10.
[27] Id., at pp. 11-12.
[28] Id., at pp. 12-13.
[29] Id., at pp. 14-15.
[30] Id., at page 16.
[31] TSN, April 7, 2005, pp. 5 & 9.
[32] Id., at pp. 12-14.
[33] Id., at page 16.
[34] TSN, August 2, 2005, pp. 4-5.
[35] Id., at pp. 6-7.
[36] Record, page 360.
[37] Record, page 856.
[38] TSN, September 25, 2007, pp. 22-26.
[39] TSN, June 23, 2006, pp. 6-8.
[40] Id., at page 9.
[41] Id., at page 22-23.
[42] Id., at pp. 10-11.
[43] Id., at page 15.
[44] Id., at pp. 17-18.
[45] Id., at page 20.
[46] TSN, October 17, 2006, pp. 5-7.
[47] Id., at pp. 11-12.
[48] Id., at pp. 12-13.
[49] TSN, July 3, 2007, pp. 4-6.
[50] Id., at pp. 6-7.
[51] TSN, September 25, 2007, pp. 4-5.
[52] Id., at pp. 5-8.
[53] Id., at pp. 11-12.
[54] TSN, January 16, 2008, pp. 5-7.
[55] Id., at pp. 7-8.
[56] Id., at pp. 10-11.
[57] Id., at pp. 13-15.
[58] Id., at pp. 16-17.
[59] TSN, April 3, 2008.
[60] Id., at pp. 14-15.
[61] TSN, May 6, 2008, pp. 3-6.
[62] Id., at pp. 20-28.
[63] Record, page 829.
[64] Record, page 841.
[65] Record, page 955.
[66] Record, page 984.
[67] Record, page 988.
[68] Record, page 990.
[69] Brief of Accused-Appellant, page 19, Rollo, page 66.
[70] Ramon Josue vs. People of the Philippines, G.R. No. 199579, December 10, 2012.
[71] SPO2 Lolito T. Nacnac vs. People of the Philippines, G.R. No. 191913, March 21, 2012, citing Palaganas v. People, G.R. No. 165483, September 12, 2006 and People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 74.
[72] People of the Philippines vs. Jimmy Rubiso, G.R. No. 128871, March 18, 2003.
[73] People of the Philippines vs. Jonathan Con-ui and Ramil Maca, G.R. No. 205442, December 11, 2013.
[74] People of the Philippines vs. Bernabe Pareja, G.R. No. 202122, January 15, 2014.
[75] BJDC Construction vs. Nena E. Lanuzo, et al., G.R. No. 161151, March 24, 2014, citing Cang vs. Cullen, G.R. No. 163078, November 25, 2009.
[76] Baron A. Villanueva and Secretary of Justice vs. Edna R. Caparas, G.R. No. 190969, January 30, 2013.
[77] People of the Philippines vs. Melanio Nugas, G.R. No. 172606, November 23, 2011.