THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EDUARDO TIONGCO Y LUSONG, ACCUSED-APPELLANT.

Accused-appellant Eduardo Tiongco y Lusong appeals from the joint
decision of the Regional Trial Court of the National Capital Judicial Region
(Branch 103, Quezon City) in Criminal Cases No. Q-91-19504 (Murder) and Q-91-22623 (Illegal
Possession of Firearms) promulgated on September 1, 1992, the dispositive
portion of which reads:

ACCORDINGLY, judgment is hereby rendered finding the accused
EDUARDO TIONGCO Y LUSONG GUILTY as principal beyond reasonable doubt of the
crime of MURDER in Q-91-19504 committed on the person of Francis Penesa y
Juatram and of the crime of Illegal Possession of Firearms in Violation of P.D.
1866 in Q-91-22623 and, consequently, said accused is hereby sentenced to
suffer the following jail terms:

(1) In Q-91-19504 for murder, to RECLUSION
PERPETUA; and

(2) In Q-91-22623 for Illegal Possession of
Firearms, to RECLUSION PERPETUA as
the subject firearm was used to kill and killed the victim
Francis Penesa y Juatram.

On the civil aspect, accused Eduardo Tiongco y Lusong is hereby
ordered to pay the heirs of Francis Penesa y Juatram the sum of P50,000.00 as
damages. No costs.

SO ORDERED.

(p. 26,
Rollo.)

The Information in Criminal Case No. Q-91-19504, dated March 25,
1991 charged:

That on or about the 20th day of March 1991, in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously,
with intent to kill, qualified by evident premeditation and treachery, assault,
attack and employ personal violence upon the person of one FRANCIS PENESA Y
JUATRAM, by then and there shooting him with a .38 caliber revolver, hitting
him at the back, thereby inflicting upon him serious and mortal wounds which
were the direct and immediate cause of his death, to the damage and prejudice
of the heirs of said Francis Penesa Y Juatram in such amount as may be awarded
under the provisions of the Civil Code.

(p. 49,
Records.)

On the other hand, the Information dated June 20, 1991, for
Illegal Possession of Firearms in Criminal Case No. 91-­22623 alleged:

That on or about the 20th day of March 1991, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, without any authority of law, did, then and there,
willfully, unlawfully and feloniously have in his possession, under his control
and custody one (1) caliber .38 “Paltik” marked Smith and Wesson
without serial number without having first secured the necessary permit and/or
license to possess/carry the same from the proper authorities, in violation of
said law.

(p. 41,
Records.)

Initially arraigned for Murder, accused-appellant pleaded
“not guilty” on May 13, 1991 (p. 57, Records). On August 22, 1991, accused-appellant was
arraigned for the offense of Illegal Possession to which he likewise pleaded
“not guilty” (p. 76, Records). The two cases were tried jointly
and as aforesaid, on September 1,
1992, the trial judge rendered his decision convicting accused-appellant
in both cases.

The facts attendant hereto were summarized by the Solicitor
General in the following manner:

At about 1 o’clock in the afternoon of March 20, 1991, as appellant
Eduardo Tiongco was watching television at his residence located at No. 98 KJJ Kamias road, Quezon City, the
ballcaster of the swivel chair which he sat on broke and got detached due to
loose thread. Finding no replacement,
appellant called on Francis Penesa, the victim, who was appellant’s stepson,
being the child of his wife, Crisanta Tiongco, by her first husband, to buy a
ballcaster (TSN, 2/24/92, pp. 9-11; 7/27/91, pp. 5-8). Francis, however, was still asleep, as he
had not slept the night before due to insomnia (TSN, 6/27/91, p. 27). Crisanta roused Francis from sleep but it
took some time to wake him up. Appellant
became angry and started saying bad words to Francis. When at last Francis awakened, he said “Opo” to
appellant, then got dressed and went to the comfort room to brush his
teeth. Appellant became even more
angry, and when Francis passed in front of him, he beat him up by boxing him
(id., pp. 8-10, 33). Francis parried
the blows of appellant. Crisanta and
the other people in the house intervened and held appellant back (id.,
35). Francis then walked out of the
house (id., pp. 11, 39). Appellant, who
could not be suppressed, went upstairs and when he came down he already carried
a .38 caliber gun and a dagger (Exh. “C”, Rec., pp. 135-137; TSN,
6/27/91, pp. 35,40). Afterwards,
appellant went out of the house to follow Francis (id., p. 11).

Unable to find Francis right away, appellant took a tricycle which
was driven by Ronald Mado (id., p. 12; TSN, 6/28/91, p. 6). Appellant, who appeared angry, boarded the
tricycle hurriedly, holding the gun. He
told Ronald to proceed “straight ahead.” Upon reaching Kasing-Kasing,
appellant asked Ronald to stop as he looked for somebody. When he did not find what he was looking
for, appellant asked Ronald to turn back to K-98 street. Again he failed to see what he was looking
for and so appellant asked to be driven back to Kasing?Kasing. At the corner of Kasing-Kasing, appellant
saw Francis. He immediately got out of
the tricycle and poked his gun at Francis. (TSN, 6/28/91, pp. 7, 9, 12, 15). As Ronald drove ahead, he heard a gunshot. Consequently, he decided to proceed to the police station (id.,
p. 10).

When appellant alighted from the tricycle, Michael Calayag was at
the Mark Store located at K-10 corner Kasing-Kasing, about ten (10) arms-length
away (id., pp. 38, 30, 43). He saw
appellant approach and poke a gun at Francis, saying, “Ano, lalaban ka
ba?”, and likewise shouted invectives at him (id., pp. 30, 48). Francis retreated and ran away. Appellant chased Francis and shot him at the
back, causing the latter to fall to the ground. Appellant approached Francis, again poked his gun at him, saying,
“Ano, lalaban ka ba,” and then kicked Francis’ body. Afterwards, appellant took out a dagger from
his waistline and put it at the left hand of Francis. Then he looked around and walked away. (id., pp. 33-­34). As
appellant reached the corner leading to his house, a military man came out from
somewhere and, with his long firearm pointed at appellant, he told the latter
not to run but to give up his gun and to raise his arms. At first, appellant denied that he had a
gun, but when the military man cocked his firearm, appellant took out his gun
and put it on the ground and raised his hands. The military man approached appellant and picked up the latter’s gun,
after which they both went near the body of Francis. Later, Pfc. Jose Imbong of the Quirino Sub-Station in Quezon
City, who responded to the incident, arrived at the scene (id., pp. 52, 34-36;
TSN, 8/22/91, pp. 5-7). The military
man turned over the person of appellant and the gun he confiscated from
appellant to Pfc. Imbong. The gun had
four (4) live ammunitions and one (1) empty shell (id., p. 8).

Crisanta Tiongco brought Francis to the V. Luna Hospital. On the way, Francis asked his mother to
fight for him because he was shot by his daddy (appellant) through no fault of
his (Francis) (TSN, 6/27/91, pp. 13-14).

(pp. 4-8,
Appellee’s Brief, ff. p. 71, Rollo.)

Accused-appellant seeks reversal upon the following alleged
errors of the lower court:

I

. . . in not holding
that accused-appellant acted in self-defense.

II

. . . in appreciating the qualifying circumstance of treachery.

III

. . . in not appreciating the mitigating circumstance of passion
and obfuscation in favor of accused?appellant.

IV

. . . in convicting accused-appellant of the crime of Violation of
PD 1866.

(p. 38,
Rollo.)

Accused-appellant’s version was synthesized by the trial judge as follows:

In his testimony the accused claimed that between 1:00 and 2:00
o’clock noon on March 20, 1991, while he was watching T.V. upstairs with his
daughter the ballcaster of the chair where he was sitting got detached. As he could not find any replacement Eduardo
went downstairs and asked his wife to wake up Francis (the herein deceased
party) so Francis could buy a replacement of the broken ballcaster. Francis failed or refused to wake up despite
incessant caller.

When Francis finally stood up, he looked at Eduardo with burning
eyes. When Eduardo inquired why Francis
was behaving in that manner, Francis positioned himself as if he was
challenging Eduardo to a fight. Mrs.
Tiongco embraced Eduardo and pacified him. The other household members separated Francis and Eduardo. Eduardo was brought by his daughter Marivic
and his wife upstairs. There he told
Crisanta that it is better to return Francis to the hospital for psychiatric
treatment.

According to the accused Francis has been in and out of a
psychotherapy clinic from August 1985 to December 1988. This portion of the testimony of the accused
is correct as the same is well-corroborated by documents of treatment and
testimony of Drs. Alex Estrella and Teodore Habas.

Going back to the household at East Kamias, Eduardo later went
downstairs for the purpose of taking Francis back to a hospital. When told that Francis has left, Eduardo
took a tricycle to follow Francis. Told
that Francis went to Kasing-Kasing Street, Eduardo went to the place where he
knows Francis and his barkada used to stay.

When Eduardo saw Francis, he asked the latter to come with him in
the tricycle. Francis refused several
times. Then Francis’ eyes started mean
and sharp and then he pulled out a gun from his hips.

Eduardo wrestled with Francis for the possession of the gun – a
revolver and the subject matter of the charge against Eduardo in Q-91-22623,
Eduardo took hold of the nozzle and grabbed Francis’ arm twisting it from
behind. As he did that, the gun fired
and Francis fell head first on the gutter.

x x x

(pp. 21-22,
Rollo.)

Three witnesses, however, contradicted accused­-appellant’s
version of the shooting incident and the Solicitor General summarizes their
respective testimony as follows:

Witness Crisanta Tiongco, wife of appellant and mother of the
victim, testified that appellant’s aggression against the victim started in
their house when appellant became angry because it took the victim some time to
follow appellant’s order to buy a ballcaster. Crisanta testified that appellant first beat up the victim by boxing
him, and, when the victim left the house, appellant still followed him, armed
with a gun and a dagger (TSN, 6/27/91, pp. 7-12, 40; Exh. “C”). Appellant then rode the tricycle driven by
witness Ronald Mado in order to look for the victim. Ronald saw that appellant carried a gun and that he appeared
angry. When appellant saw the victim at
the corner of Kasing-Kasing Street, he alighted from the tricycle and poked his
gun at the victim. As he drove away,
Ronald heard a gunshot (TSN, 6/28/91, pp. 7-10, 12; Exh. “D”). Witness Michael Calayag, who was in a nearby
store at K-10f corner Kasing-­Kasing when appellant alighted from the tricycle
and approached the victim, saw that appellant immediately poked his gun at the
victim, saying, “Ano, lalaban ka ba,” and likewise shouted invectives
at him. He saw the victim retreat and
run away, but appellant chased and shot him at the back (id., pp. 30-32; Exh.
“E”).

(pp. 12-13,
Appellees Brief, ff. p. 71, Rollo.)

Accused-appellant claims that he shot Francis in
self-defense. To bolster this stance,
he states that when he saw Francis fall, he even knelt down and asked Francis
what had happened. Such supposed show
of concern must, nonetheless, be rejected because the prosecution’s evidence
shows that accused-appellant had intended to leave the bleeding Francis, but
for the timely intervention of a military man.

It was Francis’ mother, Mrs. Crisanta Tiangco, who brought
Francis to the hospital. On the way
there, Francis told his mother “to fight for him” because
accused-appellant shot him although he (Francis) was not at fault (tsn, June
27, 1991, p. 14). The trial court
correctly considered the statement as part of the res gestae and
a dying declaration.

To constitute self-defense, Paragraph 1, Article 11 of the
Revised Penal Code, prescribes three circumstances that must concur: 1) unlawful aggression; 2) reasonable
necessity of the means employed to prevent it; 3) lack of sufficient
provocation on the part of the person defending himself.

The prosecution has established that accused-appellant was the
aggressor in the case at bench, and that the victim attempted to run away
from accused-appellant but was nonetheless shot, at the back at that. Accused-appellant having failed to establish
the very first elementary requisite of his claim for justification of his act,
there is no longer any need to go into further discussion of the two other
elements of self-defense. Withal, the
first assigned error must be rejected.

On the other hand, we agree with the Solicitor General that
treachery is not present in this case. Francis had been forewarned of accused-appellant’s fury and the possible
consequences therefrom by the fighting stance that accused-appellant had assumed
when he confronted Francis, with the words “O, lalaban ka ba!”

The Solicitor General narrates the sequence of events that
negates treachery:

WITNESS:

A.    I saw Eduardo Tiongco as if he was ran
or chasing someone, at about the same time, I also saw Francis trying to hide.

Q.   What
happened after that?

A.    I
saw Eduardo Tiongco step down from a tricycle and I saw him poked a gun at
Francis and I hear that Eduardo Tiongco say to Francis “Ano, lalaban ka
ba.”

Q.   After
that, what happened next?

A.    Francis
did not fight back.

Q.   Did
Francis talk?

A.    Francis
did not fight back, instead he ran away from Mr. Eduardo Tiongco.

Q.   After
that, what happened?

A.    When
Francis ran away, I saw Eduardo Tiongco chased him and shot Francis.

Q.   Where
did he shoot him, do you know?

A.    Francis
was shot at the back. (TSN, 6/28/91,
pp. 30-32).

(p. 17, Appellee’s Brief,
ff. p. 71, Rollo.)

In the absence of the qualifying circumstance of treachery,
accused-appellant may only be found guilty of homicide.

On the third assigned error, we are not persuaded by
accused-appellant’s claim that he was overcome by passion and obfuscation
brought about by the belligerent reaction of Francis. What actually irked accused-appellant was Francis’ slow response
to accused-appellant’s instructions to buy a ballcaster. Accused-appellant stated that he had, on at least five occasions,
interceded and negotiated for Francis’ release in robbery/theft cases filed
against him (TSN, March 30, 1992, pp. 29-30). Perhaps, accused-appellant expected Francis to show appreciation for
these favors. But Francis’ half-hearted
and delayed response angered accused-appellant, a very impatient man, who,
according to his wife, was “. . . parang kidlat pag sinabing utusan ka,
takbo agad” (T.S.N., June 27, 1991, p. 30).

The trial was thus correct when it held:

The court will not appreciate the mitigating circumstance of
passion and obfuscation inasmuch as the anger of Eduardo at Francis did not
arise from lawful sentiments. The delay
of Francis in obeying Eduardo’s request to buy a ballcaster being too trivial a matter as to fairly and justly
cause such over reaction on the part of Eduardo.

(p. 26,
Rollo.)

On the charge of illegal possession of firearms (Criminal Case
No. Q-91-22623), We agree with the Solicitor General that the trial court did
not err in convicting accused-appellant thereof.

Accused-appellant states that since the prosecution failed to
present the military man who had initially apprehended and thereafter
confiscated from accused-appellant the gun, then, Pfc. Imbong, to whom the gun
was turned over by the apprehending military man, cannot competently testify on
the charge of illegal possession of firearms so as to establish that
accused-appellant was in possession of the gun described in the
Information. In elaboration, it is
argued:

There is no clear connection between the firearm presented in court
and the firearm allegedly taken from appellant’s body. The gun was allegedly confiscated by an unidentified
military man, who handed the same to Pfc. Imbong. The unidentified military man was never presented in the witness
stand. Pfc. Imbong, who had no personal
knowledge of the confiscation of the gun from the appellant testified as
follows:

Q –  On
March 20, 1991, was there any report to you of any shooting incident?

A –   Yes
maam, there is (sic) an alarm about the shooting incident.

Q –  Did
you try to find out what was the alarm?

A –   We
were dispatched by our desk officer to proceed to corner of K-10 and
Kasing-Kasing Street.

Q –  Upon
arrival what happened if any?

A –   Yes,
maam, when we arrived at the scene, the suspect was already apprehended by a
certain, identified himself as military man.

Q –  Who
is this suspect?

A –   As
per investigation, I know the name was Eduardo Tiongco.

Q –  What
else happened after he was given to you for your custody?

A –   After
identifying by military man and turned over to us the suspect and the weapon
used by the suspect.

x x x                                  x x x                             x x x

Q
–  So, you (sic) only basis in
concluding that was the gun used was on the basis of the fact that this was
handed to you by military man, this gun was handed to you by military man?

A –   Yes
sir, because he said that was the gun used.

Q –  You
had testified here to (sic) a military man, what was the name of that military
man?

A –   We
were not able to ask him sir, because our attention was focus (sic) on the
suspect. (TSN, August 22, 1991, pp.
7-8, 17-18)

(pp. 9-10, Appellant’s
Brief, ff. p. 34, Rollo.)

The Solicitor General aptly disposes of this argument thusly:

The prosecution has indubitably shown that appellant was armed with
a gun when he pursued the victim, and that he used the same gun to shoot the
latter, with fatal result. The evidence
disclosed, however, that appellant was not a licensed/registered firearm holder
of any kind and caliber (Exhs. M and N, Rec., pp. 151-151A; TSN, 10-10-91, pp.
4-8; 2-20-92, pp. 3-9). Therefore, his
possession of the gun, of whatever kind it may be, was unlawful or in violation
of P.D. No. 1866.

Considering that appellant had not disputed the existence of the
gun as well as his possession of the said gun at the time of the incident, it
was not essential to present the person who confiscated the gun from appellant
for the purpose of identifying the same, in order to prove the charge of
illegal possession of firearms.

In any event, there is no doubt that the gun marked as Exh. I is
the same gun which appellant used to shoot the victim. Crisanta Tiongco identified it as the gun
used by appellant when it was shown to her on March 21, 1991 while executing
her sworn statement (Exh. C), thus:

20. Tanong : May ipapakita akong baril sa iyo, ito ay isang kalibre .38 na revolver,
six shooter, blue finish at may markang Smith and Wesson, ano and kinalaman sa
pagpatay at pagbaril ni TIONGCO kay FRANCIS?

Sagot : Iyan and kinuha ni TIONGCO sa itaas ng
bahay, itinutok pa niya sa akin at iyan din and ginamit ni TIONGCO sa pagbaril
kay FRANCIS na siya niyang ikinamatay.

Similarly, the testimony of Pfc. Jose Imbong that the gun (Exh. I)
was turned over to him by a military man who arrested appellant (TSN, 8-22-91,
pp. 7-8), was corroborated by
Michael Calayag who testified that as appellant walked away from the crime
scene, he was arrested by a military man who also confiscated his gun (TSN,
6-28-91, pp. 34-35). This was further
corroborated by Crisanta Tiongco during her court testimony when she declared
that, “The aid of Manglapus who is a captain got his (appellant) gun”
(TSN, 6-27-91, p. 2).

(pp. 22-24,
Appellee’s Brief, ff. p. 71, Rollo.)

Under Article 249 of the Revised Penal Code, the penalty
prescribed for homicide is reclusion temporal. In the case at bench there being no aggravating nor mitigating
circumstance, and applying the Indeterminate Sentence Law, the proper penalty
is an indeterminate penalty ranging from six (6) 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.

WHEREFORE, the joint decision appealed from is
hereby affirmed en toto with regard to Criminal Case No.
Q-91-­22623 (Illegal Possession of Firearms), and affirmed with modification in
respect to Criminal Case No. Q-91-19504 in which accused-appellant is found
guilty not of murder but of homicide only in view of the absence of the
qualifying circumstance of treachery. Consequently, the penalty imposed on accused-appellant in said Criminal
Case No. Q­-91-19504 is hereby reduced to an indeterminate sentence of six (6)
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.

No special pronouncement is made as to costs.

SO ORDERED.

Feliciano, (Chairman), Romero, and
Vitug, JJ., concur.

Bidin, J., on leave.