ROLLY ADAME, PETITIONER, VS. HON. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

Petitioner ROLLY ADAME seeks a reversal of the decision^[1]
dated May 14, 1999 of the Court of Appeals, sustaining the judgment^[2]
of the Regional Trial Court which found him guilty of frustrated homicide, and
sentencing him to two (2) years, four (4) months, and one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision
mayor, as maximum and to pay P59,700 as actual damages.

Petitioner and Teresito Adame were indicted as principal and
accomplice, respectively, in the crime of frustrated homicide under an
information which reads:

The undersigned Third Assistant City Prosecutor hereby accuses
Rolly Adame as Principal and Teresito Adame as Accomplice of the crime of
Frustrated Homicide, defined and penalized under the provisions of Article 249
in relation to Articles 6 and 50 of the Revised Penal Code, committed as
follows:

That on or about November 8, 1995 at around 8:40 o’clock in the
evening at Brgy. Wawa, Batangas City, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, while armed with a handgun of
unknown caliber, a deadly weapon, with intent to kill but without any
justifiable cause, did then and there, willfully, unlawfully and feloniously
attack, assault and shot with said gun one Manolito Lacsamana y Alea, thereby
hitting and seriously injuring him at his stomach; thus, said accused performed
all the acts of execution which would have produced the crime of homicide as a
consequence but which nevertheless did not produce it by reason of some cause
independent of the will of the perpetrator, that is, the timely and able
medical attendance rendered to said Manolito Lacsamana y Alea which prevented
his death.

That accused Teresito Adame, also separately armed with a handgun
but not having participated in the act either as principal by direct
participation, by inducement, or by indispensable cooperation, nevertheless
cooperated in the execution of the offense by previous or simultaneous acts
indicating concurrence with the principal in his criminal design by standing by
accused Rolly Adame, his son, and even firing a handgun into the air which had
direct relation to the felonious act done by the principal accused, Rolly
Adame, supplying to latter material and moral aid thereby.

CONTRARY TO LAW.^[3]

Upon arraignment, both Rolly and Teresito Adame pleaded not
guilty, hence, trial ensued.

The antecedent facts are as follows:

On or about 8:00 P.M. of November 8, 1995, Manolito Lacsamana and
his two children, Manolo and Mildred, went to the house of Ruben Lacsamana at
Barangay Wawa, Batangas. They wanted to
confront Ruben for testifying against Manolo before the Regional Trial Court of
Batangas City, where Manolo faced trial related to the killing of one Alfredo
Evangelio. At the gate leading to the compound where Ruben Lacsamana and
petitioner Rolly Adame lived, Manolito and Manolo started calling for Ruben. Manolo
then threw a stone and hit the window of Ruben’s house. After that, Manolo fled the scene leaving
Manolito and Mildred behind.^[4]

Later, Manolito returned to the compound and challenged Ruben
anew. Petitioner Rolly Adame came out of his house and fired two shots at
Manolito and Mildred. The first shot
missed, but the second hit Manolito in the stomach. Teresito Adame, petitioner’s father, also went out and fired four
shots upwards. Despite his wound,
Manolito was able to make his way to his house. From there he was immediately brought to the Batangas Regional
Hospital. With timely medical
treatment, Manolito survived.^[5]

Petitioner and his co-accused in their defense denied the
charges. Petitioner’s version of the incident is as follows:

At the time of the incident, according to petitioner, he was
about to sleep when he heard Manolito shouting invectives at Ruben
Lacsamana. He peeped through the door
of his house and saw a drunken Manolito and Mildred grappling for the
possession of a gun. At that point, the
gun fired twice. Frightened, he closed
his door and immediately went to sleep.^[6]

On October 9, 1997, the trial court found petitioner Rolly Adame
guilty as charged, but acquitted his co-accused Teresito Adame. The fallo
reads:

WHEREFORE, finding the accused Rolly Adame guilty of the offense
charged of Frustrated Homicide, he is hereby sentenced to suffer imprisonment,
with a maximum of prision mayor
medium of ten (10) years, with a minimum of six (6) years of prision correccional. He is furthermore sentenced to pay private
complainant Manolito Lacsamana in the amount of P29,400.00 for medicines
and surgeon’s fee and hospitalization of P30,300.00 or a total of P59,700.00.

For failure of the prosecution to prove the guilt of the other
accused Teresito Adame beyond reasonable doubt, he is hereby ACQUITTED. His bailbond is hereby ordered cancelled and
to be refunded to him upon presentation of the official receipt to the Clerk of
Court.

SO ORDERED.^[7]

Petitioner appealed seasonably to the Court of Appeals (CA). It affirmed the judgment of the trial court,
but modified the penalty imposed. In
its decision^[8]
dated May 14, 1999, the CA reduced petitioner’s sentence to an indeterminate
prison term of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision
mayor, as maximum.^[9] Petitioner moved for reconsideration,
but this was denied by the appellate court in its resolution of August 25,
1999.^[10]

Hence, this petition for review on certiorari. Petitioner faults the Court of Appeals for
giving probative value to the testimonies of the prosecution witnesses and for
disregarding the testimonies for the defense. He cites the following as grounds for his petition:

I

THE RESPONDENT COURT OF APPEALS ERRED IN FAILING TO RULE ON THE
CLAIM OF ACCUSED-APPELLANT BELOW, PETITIONER HEREIN, THAT THE PROSECUTION’S
VERSION OF THE INCIDENT DOES NOT RING WITH THE TRUTH AS IT CONTAINS MANY
GLARING AND IRRECONCILABLE CONTRADICTIONS ON MATERIAL AND SUBSTANTIAL POINTS
WHICH IF EXPLICITLY AND CATEGORICALLY RULED UPON WILL PATENTLY SHOW THAT THEY
WILL MATERIALLY ALTER OR ADVERSELY AFFECT THE CONCLUSION REACHED BY THE
APPELLATE COURT.

II

THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN GIVING CREDENCE
TO THE TESTIMONIES OF THE PROSECUTION WITNESSES RATHER THAN THE WITNESSES FOR
THE DEFENSE WHOSE TESTIMONIES ARE MORE CREDIBLE AND BELIEVABLE THAN THE
PROSECUTION WITNESSES.

III

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT
THE ACQUITTAL OF PETITIONER ROLLY ADAME’S FATHER AND CO-ACCUSED, TERESITO
ADAME, SHOULD BENEFIT HIM, AS THE SAME EVIDENCE WAS UTILIZED BY THE TRIAL COURT
AND THE APPELLATE COURT IN CONVICTING THE PETITIONER OF THE CRIME CHARGED.

IV

ASSUMING BUT WITHOUT ADMITTING THAT THE COURT OF APPEALS WAS
CORRECT IN HOLDING THAT PETITIONER HAD SOMETHING TO DO WITH THE SHOOTING OF
MANOLITO LACSAMANA, THE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT
PETITIONER SHOULD BE ADJUDGED GUILTY ONLY OF THE CRIME OF SERIOUS PHYSICAL
INJURIES.^[11]

The issues in this case are (1) whether the evidence now on
record is sufficient to convict petitioner of the crime of frustrated homicide
and (2) whether the proper penalty was imposed.

At the outset, petitioner protests that the CA has erroneously
given weight to the testimonies of the prosecution’s main witnesses, Manolito
and Mildred Lacsamana, on the ground that
their testimonies were rife with inconsistencies.^[12]

For the State, the Office of
the Solicitor General (OSG) contends that the defense eyewitnesses’ testimony
was accorded proper weight and value by both the RTC and the CA. The OSG
brushes aside petitioner’s imputations of inconsistencies in the testimonies of
the Lacsamanas and adds that if there were such inconsistencies, they refer to
minor, trivial or inconsequential matters which strengthen the credibility of
the prosecution witnesses.^[13] According to the OSG, petitioner’s flight from the
scene, immediately after the incident, betrays his claim of innocence of the
crime charged.^[14]

We have carefully scrutinized the records of this case and find
that we must reject the petitioner’s testimony for being obviously contrived.
It is a truism that for a testimony to be accorded credence, it must spring
from the mouth of a credible witness. The deportment of petitioner at the time
of the alleged father and daughter fight and thereafter accentuates the
dubiousness of his testimony. He claimed to have seen Manolito and Mildred
fighting for the possession of a gun. He also heard two shots thereafter, but
he nonchalantly closed his windows and at once went to sleep. Petitioner’s
apathy is remarkably unnatural and contrary to human experience. His
indifference is very disturbing, to say the least. Moreover, it is highly
unusual for a person to manage to sleep after witnessing a startling event.

We note that the defense presented no witnesses to corroborate
the petitioner’s denial apart from Rolly’s relatives. The credibility of these relatives, namely Ruben Lacsamana,
Teresito Adame, and Felix Cruzat, is undermined by the natural interest to
protect their own kin. Corroborative
testimony is not credible if tainted with bias, especially in this case where
the witness is so closely related to the accused as to naturally wish to help
him evade liability for the crime.^[15]

Quite telling was petitioner’s disappearing act after the
incident, posthaste. SPO2 Mario Panaligan testified that petitioner’s house was
empty when he checked it at 9:00 P.M. According to the police officer, he gathered
from bystanders that petitioner left the place “hurriedly.” On this point, we
quote with approval the findings of the appellate court:

Appellant could not be telling the truth that because he was
“frightened, he closed the door of his house and immediately went to
sleep”. For, when SPO2 Mario
Panaligan went to his residence on November 8, 1995, at past 9:00 in the
evening, to investigate the shooting incident, he noticed that the unit was
vacant, the lights, windows and door were open, but appellant was not there,
and that he was informed by people outside the compound that appellant
“hurriedly left the place” (tsn, September 4, 1997, pp. 6-9). Thus, if appellant indeed went to sleep, he
should be at home sleeping, but he was nowhere to be found. His act of leaving his residence posthaste
could not be the actuation of a man who claims to be innocent of any
wrongdoing.^[16]
(Italics supplied).

The act, declaration, or omission of a party as to a relevant
fact may be given in evidence against him. One particular act that can be given in evidence is flight. The unexplained flight of an accused may be
taken as evidence having the tendency to establish his guilt.^[17]

Petitioner argues that the prosecution evidence suffers from a
material flaw because of the inconsistencies in the testimonies of the
prosecution’s main witnesses, Manolito and Mildred Lacsamana. To our mind, however, the alleged
inconsistencies in the testimonies of Manolito and Mildred as regards (1) the distance
between petitioner’s house from the Lacsamana’s, and (2) Mildred’s loss of
consciousness after the shooting, refer to minor or inconsequential details,
which even serve to strengthen the credibility of the witnesses as they erase
doubts that the testimonies have been coached or rehearsed.^[18]
More importantly, the testimonies of Manolito and Mildred agree in material
points, as found by both the RTC and the CA. Basic is the rule that the trial court’s assessment of the credibility
of witnesses is entitled to great respect, a rule which becomes more binding
when the findings of facts of the trial court receive the concurrence of the
appellate court, as in this case.

Equally unavailing is petitioner’s defense of lack of motive to
kill Manolito especially in the light of the CA’s finding that petitioner was,
all along, suspecting Manolito’s son as his uncle’s killer.^[19]
It is, therefore, not far-fetched that his attempt to kill Manolito was spurred
by an underlying desire to avenge his uncle’s death. At any rate, whether or not motive was proved is immaterial in
determining petitioner’s guilt. Proof
of motive is immaterial when the identity of the petitioner has been clearly
established.^[20]

As to the crime committed, a
careful reading of the case records leads to no other conclusion than that
petitioner is indeed guilty of frustrated homicide. A conviction for frustrated
homicide requires proof of intent to kill. In People vs. Fortich,^[21] it was held that the intent to kill being an
essential element of the offense of frustrated or attempted homicide, said
element must be proved by clear and convincing evidence. Here, the intent to kill is at once evident
from the weapon used by petitioner, in this case, a gun. He shot Manolito in
the stomach, with the slug resting in the abdomen near the spinal column.^[22] It
damaged the victim’s ilium, urinary bladder, and rectum.^[23] Indeed, the nature of the weapon used for the
attack and the direction at which it was aimed unmistakably showed petitioner’s
intent to kill.^[24]

This Court has held that if the victim’s wound would normally
cause death, then the last act necessary to produce homicide has been performed^[25]
and death would have resulted were it not for the timely medical attention
given to the victim.^[26] Thus, the CA did not err in ruling that petitioner should be held liable for
frustrated homicide.

While we agree with the CA’s
verdict, we take exception to the penalty it imposed. Article 249 of the
Revised Penal Code^[27] provides the penalty of reclusion temporal for the crime of consummated homicide. Under Article 50^[28]
of the same code, the penalty for a frustrated crime is one degree lower than
that prescribed by law; thus, frustrated homicide is only punishable by prision mayor. Applying the Indeterminate Sentence Law, the minimum penalty to
be meted out on petitioner should be anywhere within the range of six (6)
months and one (1) day to six (6) years of prision
correccional, and the maximum should be taken from the medium period of prision mayor (Article 64, par. 1 of the
Revised Penal Code)^[29]
the range of which is eight (8) years and one (1) day to ten (10) years. Considering that no aggravating or
mitigating circumstance attended the commission of the crime, petitioner should
be sentenced to an indeterminate prison term of one (1) year and one (1) day of
prision correccional, as minimum, to
eight (8) years and one (1) day of prision
mayor as maximum.^[30]

As to the matter of damages, this Court observes that the trial
court and the CA awarded P59,700 as actual damages to the victim
corresponding to expenses for hospitalization and treatment. But the Court can
only accept expenses supported by receipts or evidence of a similar nature to
show that they were incurred in connection with the medical treatment of the
victim. No receipt appears on record, however, to support his claim for said
amount. Hence, no actual damages can be
granted. However, in a situation such as this case, temperate damages can be
awarded. In our view, given the circumstances
here, the amount of P20,000 as temperate damages is in order. Further, moral damages which include
physical suffering and mental anguish, maybe recovered in criminal offenses
resulting in the victim’s death or physical injuries,^[31]
as in this case. The amount of moral damages is left to the discretion of the
court. Since the court a quo did not
exercise such discretion, this Court may do so because an appeal in a criminal
case opens the whole case for review. The award of moral damages to the victim in the amount of P30,000
is sufficient.

WHEREFORE, the
assailed decision of the Court of Appeals dated May 14, 1999 is AFFIRMED with MODIFICATION. Petitioner
ROLLY ADAME is found guilty of frustrated homicide and sentenced to a prison
term of one (1) year and one (1) day of prision
correccional, as minimum, to eight (8) years and one (1) day of prision mayor medium, as maximum. He is also ordered to pay MANOLITO LACSAMANA
P20,000 as temperate damages and P30,000 as moral damages. Costs against petitioner.

SO ORDERED.

Bellosillo (Chairman), Mendoza, and
Callejo, Sr., JJ., concur.

Austria-Martinez, J., on leave.

---

^[1]
Rollo, pp. 35-46.

^[2]
Id. at 50-56.

^[3]
CA Rollo, pp. 24-25.

^[4]
Rollo, p. 114.

^[5]
Id. at 114-115.

^[6]
Id. at 39.

^[7] CA Rollo, p. 32.

^[8]
Rollo, pp. 35-46.

^[9]
Id. at 46.

^[10] Id. at 48-49.

^[11] Id. at 14-15.

^[12] Id. at 98-103.

^[13] Id. at 90.

^[14] Id. at 91.

^[15] See People vs.
Galvez, 355 SCRA 246, 263 (2001).

^[16] Rollo, p. 45.

^[17] People vs.
Templo, 346 SCRA 626, 643 (2000).

^[18] See People vs. Diaz, 262 SCRA 723,
732 (1996).

^[19] Rollo, pp. 40-41.

^[20]
People vs. Tuvilla, 259 SCRA 1, 13 (1996).

^[21] 281
SCRA 600, 619-620 (1997), citing Mondragon vs.
People, 17 SCRA 476 (1966).

^[22] TSN,
February 10, 1997, p. 14.

^[23] Id. at 16.

^[24] See People vs.
Recto, G.R. No. 129069, October 17, 2001, p. 25.

^[25] See People vs.
Salva, G.R. No. 132351, January 10, 2002, p. 11. See also People vs.
Bangcado, 346 SCRA 189, 206-207 (2000).

^[26] Ibid.

^[27] Art.
249. Homicide.—Any person who, not falling within the provisions of
Article 246, shall kill another without the attendance of any of the
circumstances enumerated in the next preceding article, shall be deemed guilty
of homicide and be punished by reclusion
temporal.

^[28] Art.
50. Penalty to be imposed upon principals
of a frustrated crime.—The penalty next lower in degree than that
prescribed by law for the consummated felony shall be imposed upon the
principals in a frustrated felony.

^[29] Art.
64. Rules
for the application of penalties which contain three periods.— x x x

1. When there are neither aggravating nor mitigating
circumstances, they shall impose the penalty prescribed by law in its medium period.

x x x         x x x         x x x

^[30] See Rabor vs.
People, 338 SCRA 381, 391 (2000).

^[31] People vs. Salcedo, 273 SCRA 473, 497 (1997).