G.R. No. 58172. May 28, 1984
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,VS. ROLANDO GARDON Y NAGA, DEFENDANT-APPELLANT.
MELENCIO-HERRERA, J.:
by the Circuit Criminal Court of Cebu City (Criminal Case No.
CCC-XIV-2133-Cebu), sentencing him to reclusion perpetua, to indemnify
the heirs of the deceased Placio Angus, Jr., in the sum of P12,000.00,
without subsiÂdiary imprisonment in case of insolvency, and to pay
proporÂtionate costs.
The Information included another accused, Osias Cajes,[1] but apparently he was not brought to trial.
The People summed up its evidence thus:
“The evidence for the prosecution showed that at around 10:00
o’clock in the evening of April 27, 1980, while Bonifacio Juab and his
neighbor by the name of Demetrio were fishing at the pier behind the
Carbon Market in Cebu City, a man, who was later identified as Placio
Angus, Jr., fell into the sea. Angus then tried swimming towards the MV
Taurus Express, a passenger boat or banca then moored at the pier
landing. Meanwhile, appellant approached Demetrio who was sitted beside
Juab and warned thus: ‘You already know about the incident. Just keep
silent about it.’ (pp. 2-3, 6, t.s.n., February 25, 1981).Although neither Juab nor his companion knew exactly how Placio
Angus, Jr. fell into the sea, they were neverÂtheless certain that
appellant had something to do with it or was the cause thereof because
appellant saw to it that the victim could not approach the pier or the
banca docked at the landing. When Angus, Jr. was already on the banca’s
outrigger and trying to climb up the boat, appellant boxed him and he
again fell into the sea. Angus, Jr. then swam farther away shouting:
‘Help!’, ‘Help!’. As the victim kept asking for succor, appellant
shouted at the former thus: ‘You keep quiet!’. Later, when the victim
submerged or sank into the water, appellant inquired: ‘Are you already
dead?’. Appellant then told Juab: ‘Noy, this is only ours. Keep quiet
about it.’ Juab and his companion were unable to prevent appellant from
drowning the victim or to render any assistance to the latter because
they were afraid of appellant who was then armed with a knife (pp. 3-4,
6-9, t.s.n., February 25, 1981).After eyewitness Bonifacio Juab regained his compoÂsure, he
immediately gathered his fishing paraphernalia, went home, and forthwith
reported the matter to the Barangay Police. Appellant and his
co-accused, Osias Cajes, were arrested on the same night by the barangay
police. They were brought to the nearest police precinct of the Cebu
City Police Force where both were investigated. The victim’s body was
recovered from the sea the morning after the incident in question (pp.
4, 9-10, t.s.n., February 25, 1981).Corporal Flaviano Sanson of the Cebu City Police Force who took down
appellant’s written statement (Exhs. ‘A’ to ‘A-3’), declared that the
latter admitted to him in the course of the investigation responsibility
for the fatal drowning of Placio Angus, Jr., although in appellant’s
sworn statement (Exhs. ‘A’ to ‘A-3’), he implicated Osias Cajes and
tried to blame him for the drowning of aforenamed victim (pp. 2-3, 5,
t.s.n., March 19, 1981).Dr. Crisostomo C. Abbu, medico-legal officer or Medical Services
Supervisor III of the Cebu City Health Department, who conducted the
autopsy on the body of the victim, made the corresponding necropsy
report (Exhs. ‘C’ to ‘C-1’) and issued the death certificate (Exhs. ‘B’
to ‘BÂ1’). He confirmed on the stand that the cause of death of the
victim was ‘asphyxia by drowning’. He further declared that since the
body of the victim was already darkened or bluish in color and nearing
the state of decomposition at the time of the autopsy or examination
owing to some delay before the same could be actually conducted or
performed, it was no longer possible for him to deterÂmine whether there
were signs of violence or external inÂjuries, like abrasions or
contusions, on said body. At such a state or condition of the body, what
were possible of determination only would be the presence of serious
wounds that leave a deep cutting of the skin, like stab and bullet
wounds (pp. 2-10, t.s.n., April 9, 1981).”On the other hand, appellant, as the only witness for the defense,
declared that at around 10:00 in the evening of April 27, 1980, while he
was sitting on a bench outside the store where he works, located at the
back of Carbon Market, Cebu City, beside the pier, he saw at a distance
of about 8 meters, Osias Cajes, a cook on the MV Taurus (who is
familiar but not personally known to him) exchanging fist blows with
another man near the edge of the pier. Hearing a shout for help he ran
towards the pier. The man (Placio Angus, Jr.), who was exchanging blows
with Osias Cajes, fell into the sea. Seeing that the latter was swimming
away from the pier, he left and went back to the store. He saw Osias
Cajes board the banca which was moored at the pier. Appellant denied
having hit or boxed the deceased.
At around 12:00 midnight that same evening, appellant was arrested by the barangay tanods
and taken to the police precinct where his statement was reduced to
writing the folÂlowing day. Quoted hereunder is a portion of that
statement wherein, contrary to his oral testimony, appellant admitted
having boxed the deceased:
“Question: At 10:00 o’clock in the evening more or less of April 27, 1980, will you tell us where were you?
Answer : I was at a store in Carbon Market near the pier.
Question: You said that you were at the store, will you tell us what were you doing there?
Answer : I was sitting sir.
Question: While you were sitting, did you notice an incident?
Answer : Yes, sir, I saw Osias Cajes and another person having a fist fight at the pier.
Question: While Osias Cajes and a person (Junior) were having a fist fight, what did you do?
Answer : I approached Osias Cajes and his adversary and box the
person whom Osias Cajes was fighting with. The person fighting with
Osias Cajes ran but Osias Cajes pursued him. When Osias Cajes caught up
with his enemy, Osias Cajes mauled him until the said person fell into
the sea. The said person swam toward a boat and when the said person
climbed up thru the outrigger Osias Cajes met him and the person fell
from the outrigger. The said person swam until the time that I did not
hear anymore from the said person.” (Exhibit “A”).
After Osias Cajes was apprehended, he gave the following sworn, statement:
“Question: While you were on board the banca, did you notice an unusual incident?
Answer: I disembarked from the banca in order to buy
cigarettes. After I bought cigarettes I return to the banca already in
company with Rolando Gardon. We passed by a person who was sleeping and I
ask Rolando Gardon who was that person sleeping. I was even told by
Rolando Gardon that we will box the said person. I refused and left
Rolando Gardon. I returned to the banca and while there I saw that
Rolando Gardon was mauling a man. I went down from the banca and called
Rolando Gardon’s attention. I was told by Rolando Gardon not to meddle. I
went back to the banca and I also saw that Rolando Gardon told the
person to jump into the sea because if he won’t Gardon will stab him
with the knife he was carrying at the time. The said person jumped into
the sea and swam towards the outrigger of our banca. When the said
person reach the banca I received him. When the said person was already
standing on the side of the banca Rolando Gardon came and box the said
person ‘who fell into the sea again. The said person swam away from the
banca. I saw the said person swimming and shouting for help. Not long
after the said person submerge and I did not see him anymore.”
The foregoing statement was not offered in evidence but was merely attached to the Information. According to the Trial Judge[2]
, “the police investigator, convinced of Cajes’ testimony, recommended
that Cajes be utilized as a state witness.” The transcript of the
proceedings, however, does not include his testimony.
Convicted of Murder, appellant attributes the followÂing errors to the Trial Court:
“I
The Court a quo erred in giving full weight and credence to the
sole and uncorroborated testimony of prosecution eyewitness Bonifacio
Juab merely because in its opinion it was direct and positive evidence
without, however, judiciously taking into account that alleged facts
generated thereby were inherently improbable, inconsistent with human
nature or against the natural course of things and, therefore, it ought
to be discarded in evidence.
II
The Court a quo erred in appreciating as evidence against the
appellant the sworn deposition of accused Osias Cajes which was not even
offered in evidence by the prosecution itself and neither was he
presented as a witness so as to afford appellant the opportunity to
cross-examine him thereon.
III
The Court a quo erred in ill-advisedly appreciating the sworn
deposition of appellant exhibit ‘A’, to be in the nature of an
extrajudicial confession when, in truth and in fact, it was not so by
any stretch of the imagination.
IV
The Court a quo erred in entirely discrediting the testimony of
appellant as unworthy of being given credence on the ground his defense
was a denial when, a sensu contrario, the facts testified to by him had
badges of truth and more in accord with human experience and
observation; and that, moreover, the same gained greater consideration
and weight in the light of the prosecution evidence which appeared weak
and insufficient.
V
The Court a quo erred even if granting, arguendo, the appellant
was culpable for the death by drowning of the deceased Placio Angus,
Jr. after boxing him yet treachery was not attendant thereto and,
therefore, he could only be guilty of homicide as analogously held in
U.S. versus Valdez, 41 Phil. 497; that, furthermore, the attenuating
circumstance of lack of intent to commit so grave a wrong as that
committed should have been appreÂciated in his favor without any
aggravating circumstance to offset the same.
VI
The Court a quo erred in not acquitting the appellant of the
crime charged at bar upon failure of the prosecution to establish the
requisite quantum of proof necessary for conviction beyond reasonable
doubt.”
There is no reason to doubt the positive identificaÂtion of appellant by
prosecution eyewitness Bonifacio Juab, himself a barangay tanod. Thus,
“Q Mr. Juab. Where were you at 10:00 o’clock in the evening of April 27, 1980?
A I was fishing at the Pier sir.
Q In what particular part of the Pier were you fishing?
A 2nd Street.
Q Is that behind the carbon market?
A Yes, sir.
Q Who was your companion when you went fishing?
A My neighbor by the name of Demetrio.
Q His surname?
A I do not know his surname.
Q How far were you when fishing to Demetrio?
A Around an arms length away from each other.
Q Could you tell to the Honorable Court what were in the vicinity wherein you were fishing?
A No. That is a pier. Nothing. That is a pier.
Q Then what happened while you were fishing together with Demetrio that evening?
A There was a man who fell into the water.
Q Then what did you do upon seeing that a man fell into the water?
A Nothing sir. I just watched him swimming towards the banca.
Q How far were you to that man whom you said swam towards the banca?
A Only a arms length away from me, sir, that was also the place that he fell into the sea.
Q Do you know that person?
A I do not know.
Q Do you know the name now?
A Yes, sir. I already know who is he.
Q Who is he?
A Placio Angus, Jr.
Q Do you know why that Placio Angus, Jr. fell to the Water?
A I do not know.
Q Then, while Placio Angus, Jr. was swimming towards the banca what happened?
A Rolando Gardon approached my companion who was just beside me
and said, ‘You already know about the incident. Just keep silent about
it.’Q If Rolando Gardon is inside the courtroom now, will you please point him out?
A The one wearing white t-shirt (witness pointing to the accused Rolando Gardon).
Q Then what was the response made by you and that Demetrio after that statement made by Rolando Gardon?
A Demetrio did not answer him, sir, and after that Rolando Gardon
proceeded towards the banca and after reaching the banca the man who
fell into the sea was already on the outrigger of the banca and Rolando
Gardon met that man and boxed him and the man fell into the sea again.Q How far were you to the place where Rolando Gardon boxed that man that fell to the water?
A Around five arms lengths.
Q Again, that distance, was there any obstruction?
A None.
Q What lighted the place if there was any?
A The light from the banca and the light from the moon.
Q So you have clearly identified Rolando Gardon as the one who boxed Placio Angus?
A Yes.
Q Then what happened after Placio Angus was boxed by Gardon when he fell to the water?
A He swam farther away shouting ‘Help!’ ‘Help!’
Q Then what did you do after hearing the words, ‘Help!’ ‘Help’
A I just watched where he was going to.
Q Then what happened while you were following your eyes to them?
A At that time, sir, Lando went up on the pier again and
shouted to the person swimming who was all the time shouting ‘Help!
Help!’, then Lando said ‘You keep quiet!’ And then a little later the
man submerged and then Lando said, ‘Are you alÂready dead?’ And then he
confided to me and said, ‘Noy, this is only ours. Keep quite about it.’Q What did you do upon hearing the words of Gardon?
A I just looked at Lando Gardon at that time, sir, then
immediately I gathered my fishing paraphernalia, went home, called the
barangay police and arrested him (witness pointing the accused Rolando
Gardon).Q What did you do with Gardon?
A We brought him to the police precinct.
Q Then how about the person who was drowned?
A In the morning we dove for him and we were able to recover his body.
Q Then what happened to Placio Angus, Jr.”
A Already dead.”[3]
The place where the incident occurred was well-lighted and Juab’s and
Demetrio’s presence at that time fishing was confirmed by appellant
himself.
“COURT (To the witness):
Q No one was fishing there?
A There were but quite far.
Q But near enough to see what happened?
A They can see the place because it was lighted.”[4]
Juab was instrumental in the apprehension of appellant two hours later
and he identified the appellant when confronted at the police precinct
the next day.[5] The early
identification of appellant by the prosecution eyewitness, which
identification led to his prompt arrest, bespeaks of the spontaneity and
veracity of said witness.[6]
Juab has not been shown to have had any improper motive to testify
falsely against appellant, so that his testimony deserves full faith and
credit.[7]
The failure to present all the eyewitnesses to an act does not
necessarily give rise to an unfavorable presumption, especially when the
testimony of the witness sought to be presented is merely
corroborative.[8] If the
other witnesses could have helped appellant, he should have availed of
the compulsory processes of the Court to enable him to present them as
his own witnesses.[9]
The declarations of Juab that are allegedly “inherently improbable”,
“inconsistent with human nature”, or “against the natural course of
things” are not really so. Appellant’s warning to Juab and Demetrio not
to reveal the incident is not improbable for he knew that they had
witnessed the victim’s falling into the sea. That the other passengers
on board the boat did not make any outcry while appellant was shouting
at the victim as the latter clambered up the outrigger is neither
incredible, it not having been shown that they were aware of the
happening, or even if aware, they were about to depart for Bohol. That
Juab neither bothered to help the vicim was explained by him stating
that he was overcome by fear because he saw that appellant was carrying a
knife while he himself was unarmed.[10]
It was for the same reason that Juab did not arrest appellant on the
spot but felt it more prudent to call other barangay policemen.[11]
That the victim, after falling into the sea, would swim away from the
banca and not just hold on to the outrigger is not necessarily contrary
to human nature. Facts prevail over assumption.[12]
That appellant had told the victim to stop shouting for help and had
asked him whether he was still alive as the latter was submerged in the
sea is neither bizarre. Persons react differently to similar situations.[13] Besides, it was apparent that appellant was bent on doing away with the victim.
That appellant did not flee from the scene of the crime is not
necessarily indicative of a clear conscience. He may have smugly thought
that the two men fishing on the pier would not be able to identify him,
or that they would keep “quiet about it” at his behest.
True, Juab’s companion, Demetrio, was not presented to corroborate the
former’s testimony. It is well settled, however, that the testimony of
only one witness, if credible and positive and if it satisfies the Court
beyond reasonable doubt, is sufficient to convict.[14]
The second assigned error challenges the consideration by the Trial
Court of Osias Cajes’ sworn statement. Although it was, in fact,
incorporated in the Decision appealed from, conviction was not
predicated thereon but upon oral testimonies and other documentary
evidence.
As to the third assigned error, while it may be that the lower Court had
used the term “confession” in referring to appellant’s sworn statement
(Exhibit “A”), it is obvious that it was not a confession since it was
exculpatory in nature. Appellant’s only admission therein was that he
had boxed the victim in cooperation with Osias Cajes. The mistake in
nomenclature has not really prejudiced the accused.
The fourth assigned error dwells on the credibility of witnesses, in
respect of which, it is well-settled that the findings of the lower
Court, which had the opportunity to see, hear and observe the witnesses
testify and to weigh their testimonies are accorded the highest degree
of respect by this Tribunal.[15] Greater weight must be given to the positive testimonies of prosecution witnesses than to the denials made by the defense.[16] No substantial reason has been advanced to justify a departure from those general rules.
The fifth assignment of error, however, is well taken. Treachery has not
been proven. Prosecution eyewitness Juab himself declared that he did
not know why the victim fell into the water. As the Solicitor General
had aptly observed:
“There is no disclosure on how the initial attack or assault on
the victim started. There is no showing that the attack was sudden.
There is also no evidence, and the said testimony does not show, that
the appellant employed means and methods or form of execution tending
directly and specially to facilitate the commission of the offense
without danger to him coming from the deceased. More, it has not been
established that appellant has deliberated upon, or consciously adopted,
any such means or methods in the commission of the crime. As thus
correctly stated by appellant, the requisite for treachery to be
appreciated in the case at bar is not present (People vs. Payao, 68 SCRA 70; People vs. Santos, 85 SCRA 630; People vs. Samonte, Jr., 64 SCRA 319). Indeed, it is the rule that treachery should be proven as fully as the crime itself (People vs. Ardisa, 55 SCRA 245; People vs. Balmaceda, 87 SCRA 94). Accordingly, the crime committed by appellant is homicide, not murder”.[17]
The case of U.S. vs. Valdez, 41 Phil. 497 (1921), is analogous.
In that case, the accused had brandished a big knife at the victim
while they were on a small boat in the Pasig River. Before the accused
reached the victim at the bow of the boat, the latter, believing his
life in danger, threw himself into the water, disappeared beneath the
surface and was seen no more. The accused therein was convicted of
Homicide.
“If a person against whom a criminal assault is directed
reasonably believes himself to be in danger of death or great bodily
harm and in order to escape jumps into the water, impelled by the
instinct of self preservation, the assailant is responsible for homicide
in case death results by drowning.”[18]
Appellant should likewise be chargeable with Homicide. The mitigating
circumstance of lack of intent to commit so grave a wrong cannot be
appreciated in appellant’s favor. His determined resolution to do the
victim wrong was evident when, even after the victim had disappeared
beneath, the surface of the sea, he cruelly asked “are you already
dead?” Appellant’s bid for acquittal in his sixth assignment of error,
therefore, deserves no consideration.
WHEREFORE, the Court finds the accused, Rolando Gardon y Naga, guilty
beyond reasonable doubt of the crime of Homicide and in the absence of
any modifying circumstances, hereby sentences him to suffer an
indeterminate penalty of eight (8) years and one (1) day of prision
mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum; to indemnify the heirs of the deceased Placio Angus, Jr. in the sum of P30,000.00;[19] and to pay one-half of the costs.
SO ORDERED.
Teehankee, (Chairman), Plana, Relova, Gutierrez, Jr., and De La Fuente, JJ., concur.
[1] p. 1, Original Record.
[2] p. 4, Decision.
[3] T.s.n., February 25, 1981, pp. 2-4.
[4] T.s.n., April 14, 1981, p. 6.
[5] T.s.n., March 19, 1981, p. 2; T.s.n., April 14, 1981, p. 7.
[6] People vs. Tumalip, 60 SCRA 303 (1974).
[7] People vs. Valdemoro, 102 SCRA 170 (1981); People vs. Pingkian, 107 SCRA 112 (1981).
[8] People vs. Genoguin, 56 SCRA 181 (1974); People vs. Manimtim, 120 SCRA 324 (1983).
[9] People vs. Ombao, 103 SCRA 233 (1981).
[10] T.s.n., February 25, 1981, p. 7.
[11] Ibid. p. 4.
[12] People vs. Macalisang, 22 SCRA 699 (1968); People vs. Battung, Jr., 102 SCRA 158 (1981).
[13] People vs. Realon, 99 SCRA 422 (1980); People vs. Gonzales, 99 SCRA 697 (1980).
[14] People vs. Boduso, 60 SCRA 60 (1974); People vs. Candado, 84 SCRA 508 (1978).
[15] People vs. Garcia, 105 SCRA 325 (1981); People vs. Mendoza, 105 SCRA 459 (1981).
[16] People vs. Plateros, 83 SCRA 401 (1978).
[17] Brief for Plaintiff-Appellee, pp. 24-25.
[18] U.S. vs. Valdez, 41 Phil. 497 (1921).
[19] People vs. de la Fuente, G.R. Nos. 63251-52, December 29, 1983.