G.R. No. 101576. June 27, 1994
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RESTITUTO PERCIANO Y CAMACHO, JOHN DOE, PETER DOE, ACCUSED-APPELLANT(S).
Puno, J.:
Accused was charged with Attempted Robbery with Homicide before
the Regional Trial Court of Quezon City.[1] The Information,[2] dated
October 30, 1989, reads:
“That on or about the 26th day of October, 1989, in Quezon City,
Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together, with
intent to gain, by means of violence upon person, did then and there wilfully,
unlawfully and feloniously commence the commission of robbery directly by overt
acts, by then and there attempting to rob EPITACIO AGANAN y SORBITO, in the
following manner, to wit: on the date
and place aforementioned, the said complainant who was then driving his Tamaraw
Pick-Up with plate No. NGR-256 along Janet St., San Miguel Subdivision, Tandang
Sora, this City, the above-named accused boarded said Tamaraw Pick-up and upon
reaching Visayas Avenue, Brgy. Vasra, this City, accused Restituto Perciano y
Camacho armed with a gun ordered the complainant
to stop then announced a hold-up,
but said accused did not perform all the acts of execution which would produce
robbery by reason of some cause or accident other than their own spontaneous
desistance, that is, complainant immediately started the engine of his vehicle, prompting the accused to
shoot said Epitacio Aganan y Sorbito, hitting the latter on his right armpit,
thereby inflicting upon him serious and mortal gun-shot-wound which was the
direct and immediate cause of his death, to the damage and prejudice of the
heirs of said Epitacio Aganan y Sorbito, in such amount as may be awarded to them under the provisions of
the Civil Code.
“Contrary to law.”
Upon arraignment, accused
Restituto Perciano y Camacho pleaded not guilty.[3] He underwent trial.[4]
The facts:
The victim Epitacio
Aganan was a fish vendor. On October
26, 1989, he was to go to Navotas Fishport to buy fish. At around 10:35 P.M., that same day, Epitacio, his daughter Rhodora Aganan, and two (2) other companions,
namely, Flora Fuentes and Sancho Ignacio, headed for the fishport on board a
Tamaraw pick-up vehicle. Epitacio was
the driver. Seated beside him was
Rhodora. Sancho and Flora, on the other
hand, sat at the back portion of the Tamaraw. While they were passing along Janet Street, more or less one (1)
kilometer from the Aganan residence,[5] three (3) men flagged down their
vehicle and said “Manong,
makikisakay ho.” Epitacio acceded saying: “Sige, diyan sa likod.”[6]
Rhodora thus asked her father who those
men were. His father replied: “Mga taga diyan lang.”[7]
One of the three (3) men, later
identified as accused Restituto Perciano y Camacho, sat opposite Flora. He was wearing a maong jacket and a
security guard outfit.[8]
Upon reaching Ledesma Court, along Visayas Avenue, the three men
requested Epitacio to stop the Tamaraw as they were going to alight. As soon as they alighted, accused Perciano,
walked towards the right side of the vehicle, announced a “hold-up” and poked a gun on Epitacio. Nervous, Rhodora looked out of the window
and saw Restituto from half a meter distance holding a gun with his left
hand. The gun was fired and Epitacio was hit on the right armpit. Epitacio stepped on the accelerator, leaving
behind the hold-uppers who immediately fled.
After a short distance, the wounded Epitacio lost control of the
vehicle which crashed against a Meralco
lamp post. He collapsed on Rhodora’s
lap. Rhodora shouted for help. People came and rushed Epitacio to the East
Avenue Medical Center. He was dead on
arrival.
The autopsy conducted on
the victim revealed the following:
“CAUSE OF DEATH: Hemorrhage, severe, secondary to gunshot wound.
“REMARKS: – One (1) deformed slug was recovered, submitted
to Firearms Investigation Section, NBI, for examination.” (emphasis ours)
(Autopsy
Report No. N-89-3419)[9]
Previous to the incident,
or at around 9:00 P.M., on October 26, 1989, Norma Lopez, caretaker of a sari-sari
(variety) store along Janet Street, saw
the accused and two (2) other men within the vicinity. They were walking back and forth across the
street. Later, accused Restituto approached
her and asked for one (1) bottle of Coke solo. Accused was wearing a security guard uniform. She, however, failed to see his name tag as he was wearing a maong jacket.[10] After giving him the softdrink, he returned
to his companions who were waiting for him across the street. While they were drinking, she struck a
conversation with them. They told her
they were waiting for somebody. After
an hour, the Tamaraw driven by Epitacio Aganan, whom she had known for three
(3) years, passed by. She saw Rhodora
and two other companions on board the Tamaraw. Accused and his companions then left without paying for the
softdrink. They boarded the Tamaraw
driven by Epitacio.
The defense was anchored
on alibi and denial.
Restituto Perciano was
allegedly in his post in San Pedro IV
Subdivision, Tandang Sora,
Quezon City from 8:00 P.M., on October 26, 1989, until 6:00 A.M. the following
day. He and his co-security guard, Rufo
Dabban, Jr. engaged in small talk for thirty minutes. Restituto was then complaining that he had a hard time sleeping. Thereafter, Rufo proceeded to his post some seventy five meters away
from Restituto’s post.
At twelve midnight, Rufo
blew his whistle, a standard
operating procedure to verify whether the security guards on duty were awake. The whistle did not draw any response from
Restituto. Rufo then checked on
Restituto and found the latter sleeping at his post. He woke him up. Restituto
stood up and blew his whistle as Rufo returned to his post. The next day, October 27, 1989, at 6:00
A.M., Rufo and Restituto went home.
At 8:00 P.M. of
the same day, accused Restituto Perciano
and Rufo Dabban, Jr., again reported for work. The policemen came and took them to the police station for
investigation. Restituto Perciano was
identified by Rhodora as the gunman. Subsequently, the suspects were brought to Camp Crame and subjected to a
paraffin test. Chemistry Report
C-1650-89 showed these findings:
“FINDINGS:
“x x x x x x .
“1. The left
hand of RESTITUTO
PERCIANO gave POSITIVE result to the test for gunpowder nitrates while the right hand gave a negative
result; (emphasis ours)
“2. Both
hands of RUFO DABBAN gave a NEGATIVE result to the test for gunpowder
nitrates.”
Three (3) sample bullets,
fired from the service gun[11] of Restituto, were tested vis-a-vis the fatal bullet
(marked “EA”) recovered from the body of the victim. The test conducted by the Firearms Investigation Section of the
National Bureau of Investigation concluded as follows:[12]
“FINDINGS-CONCLUSION:
“Comparative examinations made between the evidence bullets
fired from PALTIK (S & W) Revolver,
Caliber .38, SN 1219399 revealed POSITIVE results; said evidence bullet marked “EA” was fired from this particular
firearm.” (Emphasis ours)
The security guard
attendance logbook of San Pedro IV Subdivision was also presented in
evidence. Page 45 thereof showed the
signatures of Rufo and Restituto opposite the date October 26, 1989. During the hearing, accused Resituto tried
to establish that he was a right-handed person and could not be the left-handed
gunman alluded to by the prosecution. He signed his name five (5) times before the trial judge.
On the basis of the
evidence adduced by the parties, the trial court rendered judgment, finding the
accused, Restituto Perciano y Camacho, guilty as charged. The dispositive portion of the Judgment,[13] dated August 14, 1991, reads:
“WHEREFORE, finding accused RESTITUTO PERCIANO y CAMACHO guilty
beyond reasonable doubt of the crime of attempted Robbery with Homicide, (said
accused) is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, to
pay the heirs of the deceased the sum of P50,000.00, without subsidiary
imprisonment in case of insolvency, plus all the accessory penalties provided
for by law, and to pay the costs.
“SO ORDERED.”
Hence, this appeal where accused-appellant questions the
credibility of the witnesses for the prosecution.
We affirm the judgment of conviction.
Rhodora positively identified the accused-appellant as the
gunman. She could not have been mistaken
as she was barely half a meter away from accused-appellant when he pulled the
trigger on her father. At that time
too, the lights inside their Tamaraw vehicle were on. She testified:
“PROSECUTOR BELTRAN:
“Q: And
after these three persons had hitched a ride with your Tamaraw vehicle being
driven by your father, where did you go next?
“A: When
we reached Ledesma Court, Visayas the three men asked that my father stopped
(sic) the vehicle so that so that they can alight.
“Q: And
did your father stop the vehicle upon (the) request of these three persons?
“A: Yes,
sir.
“Q: When
your father stopped the vehicle, what happened?
“A: The
three men alighted and one of them immediately went to my father’s side and
pointed a gun at him.
“Q: By the way, where were you seated all along
while you were coming from your house and passed
through Janet Street and up to the time when these three men alighted from your
vehicle?
“A: I
was beside my father on his right side.
“Q: You said that one of the three men who had
earlier hitched a ride with your
Tamaraw pick up went to your father’s side and poked a gun?
“A: Not
my father’s side, sir. It is right
side. On the right side of the Tamaraw.
“Q: And poked a gun at whom?
“A: My father.
“Q: When
this person poked a gun at your father, did you hear them say anything? This man?
“A: Yes,
sir.
“Q: What did they say?
“A: They said hold up.
“Q: And
when you heard these persons say hold up, what did you do?
“A: Sir, I looked at the face of the man.
“Q: How about your father, what did he do?
“A: It
was this way, sir. When he pointed a
gun, he immediately fired it.
“x x x x
x x x x x.
“Q: Will
you be able to identify any or all of these three persons when you see them
again?
“A: The one who shot my father I saw him, sir.
“x x x x
x x x x x
“Q: Will
you look around the courtroom and see if he is inside the courtroom?
“A: Yes,
sir.
“Q: Please
point to him?
“A: There, sir. (Witness pointing to a man inside the courtroom who gave his name as
Restituto Perciano).
“Q: Now, more or less, how far were you from the accused when you saw him shot
your father?
“A: More
or less, half meter.
“Q: And
will you tell the Honorable Court if there
was any light which was coming from inside your vehicle at the time your father
was shot?
“A: Yes,
sir. There was light inside our
Tamaraw.
“Q: Did you take a look at the gun or the firearm which was used?
“A: Yes,
sir.
“Q: Can you describe it to the Honorable Court?
“A: It looked like a revolver.
“x x x x
x x x x x.
“Q: I would like to make it of record your Honor,
that since about ten minutes ago, the
witness has been crying especially
immediately after she pointed to the accused. (emphasis ours)
(TSN, February 6, 1990, pp. 6-12)
Her credibility is enhanced by the fact that she had no ill-motive to testify falsely against the
accused?appellant. She did not
know accused-appellant before the incident. It is a rule that “when there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the
presumption is that he was not so moved and his testimony is entitled to full
faith and credit.”[14] Thus, as between the alibi of accused-appellant and the positive declaration of
Rhodora identifying the accused-appellant as the gunman, the latter deserves greater credence.
We are not convinced of
accused-appellant’s claim of innocence. His left hand was positive for gunpowder nitrates. He did not explain the presence of these
nitrates. Instead, he tried to prove
that he is right handed. But the fact
that he is right handed does not negate the possibility that he fired at the
victim using his left hand. The gun in
question is a .38 caliber pistol which could easily be fired. More importantly, the prosecution had proved
that the fatal bullet came from the service gun of accused-appellant.
The evidence that
accused-appellant reported for work, on October 26, 1989, at around 8:00 P.M.,
is not indubitable. Buen Nicol, the custodian
of the attendance logbook of the San Pedro IV Subdivision, testified as
follows:
“PROSECUTOR ALAMEDA:
“Q: Mr.
Nicol, do you remember where you were on or about October 26, 1989 at 6:00
o’clock in the evening?
“A: Sir, I could not remember where I was during
that time.
“Q: And you could not also remember Mr. Nicol
if the security guards assigned to the subdivision where you are the board
member reported for work on October 26, 1989?
“A: Yes, sir.
“Q: And you are not in a position to tell as to whether or not the signature
appearing opposite the name Restituto Perciano is the signature of Perciano
because you were not present at that time although you are the custodian of
this logbook?
“A: They
signed, sir, in the morning of October 27.
“Q: So, the procedure of these security guards in signing their names in
this logbook is that when they reported for example on October 26, 1989, they
did not immediately sign their names?
“A: Yes,
sir.
“Q: And
they only signed their names the following day, October 27, 1989 in the
morning?
“A: IN
THE morning.
“Q: So that you are not in a position to tell us whether or not these guards
reported for duty the day before because they only signed their names the
following day?
“A: Yes,
sir.”
(TSN, December 11, 1990, pp. 13-14).
The unexplained presence
of gunpowder nitrates on the left hand of accused-appellant, the slug recovered
from the body of the victim which matched the test bullets from
accused-appellant’s service gun, the nature of the wound sustained by the victim
and the positive identification of accused-appellant as the gunman cannot be
overcome by the alibi of accused-appellant.
The trial court did not
err in finding accused-appellant guilty beyond reasonable doubt of Attempted
Robbery with Homicide. Craft was
employed in the commission of the offense since accused-appellant and his
cohorts pretended that they were only after a free ride when they
flagged down the vehicle of the victim. Taking advantage of the goodness of the victim, accused-appellant, albeit
unsuccessful, commenced to rob the victim but killed the victim in the
process.[15] Considering these circumstances, the trial
court was correct in imposing the penalty in the maximum period, that is, reclusion
perpetua.[16]
WHEREFORE, premises considered, the judgment of the
trial court, finding the accused-appellant RESTITUTO PERCIANO Y CAMACHO guilty
beyond reasonable doubt of Attempted Robbery with Homicide, is AFFIRMED in
toto. Accused-appellant is
sentenced to suffer the penalty of reclusion perpetua[17]
and to pay civil indemnity to the heirs of the victim, EPITACIO AGANAN, in the
amount of fifty thousand pesos (P50,000.00). With costs against accused-appellant.
SO ORDERED.
Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ.,
concur.
[1]
Docketed as Criminal Case No. 89-7941.
[2]
Original Records, p. 1.
[3]
Original Records, pp. 5 & 6.
[4]
His companions that fatal evening
remained unidentified.
[5]
In Carol Street, San Miguel
Subdivision, Tandang Sora, Quezon City.
[6]
TSN, February 6, 1990, p. 23.
[7]
Ibid.
[8]
TSN, March 13, 1990, p. 14; TSN, May
16, 1990, pp. 15 and 16; Exhibit “F.”
[9]
Marked as Exhibit “A.”
[10]
TSN, May 16, 1990, pp. 15-16.
[11]
A paltik, .38 caliber pistol, with
serial number 1219399 (Exhibit “H”).
[12]
See Exhibit “N”.
[13]
Penned by Judge Maximiano C. Asuncion.
[14]
People vs. Gerente, G.R. No.
95847-48, March 10, 1993, 219 SCRA 756.
[15]
People vs. Lee, G.R. No. 66848, December 20,
1991, 204 SCRA 900, 911.
[16]
Article 297 of the Revised Penal Code provides:
“Art. 297. Attempted Robbery and frustrated robbery committed under certain
circumstances. – When by reason or on occasion of an attempted or frustrated
robbery a homicide is committed, the person guilty of such offenses shall be
punished be reclusion temporal in its maximum period to reclusion
perpetua, unless the homicide committed shall deserve a higher penalty under the provision of this Code.”
[17]
See also People vs. Casalme, et al., No. L-11057, June 29, 1957, 101
Phil 1249.