PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALBERTO (BERTING) ALMARIO, HECTOR & ZENON SAMONTE, ISAGANI SACOP, BRUNO ABLAO, AND FRANCISCO BALDEMECA, DEFENDANTS, ALBERTO (B…

On March 2, 1981,
an information was
filed against Alberto (Berting) Almario, Zenon Samonte, Hector Samonte, Bruno
Ablao, Francisco Baldemeca
and Isagani Sacop for the crime of murder committed as
follows:

That on or about
March 6, 1979, in the Municipality of Lumban, Province of Laguna and within the
jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping with (sic) each other
with treachery and evident premeditation did, then and there, wilfully, unlawfully and feloniously and with intent to
kill, attack, assault and shot (sic)
at one ELEUTERIO B. BELEN with an unlicensed firearms (sic) thereby
inflicting upon the latter serious and mortal gunshot wounds on the (sic) different parts of his body which immediately
caused his death, to the damage and
prejudice of ELEUTERIO B. BELEN and his heirs. [Original Record, p. 1.]

Sometime in July 1980, they were arrested and detained by the
military pursuant to Arrest, Search and Seizure
Order (ASSO) Nos. 4837
and 4857.  In a Charge Sheet dated December 16, 1980 they were charged
with violating General Order Nos. 6 and 7
in relation to Pres. Dec. No. 9*
and Art. 248 of the Revised Penal Code, specifically, Illegal
Possession of Firearm with Murder.

Accused Francisco Baldemeca escaped from his detention at the 224th PC
Headquarters on February 10, 1981.  Bruno Ablao died of
old age on March 20, 1981.  The remaining four (4) accused, when
arraigned, pleaded not guilty.

The antecedent facts of this case are as follows:

On March 6, 1979,
at around 7:30 in the morning, in Barangay Primera Parang, Lumban, Laguna, tricycle
drivers Danilo
Ramos and Arthur Ballesteros were waiting for passengers.  At about the same time, Danilo
Ramos saw Lt. Eleutorio Belen, Chief of Police of Paete, Laguna, standing across the road waiting for a jeepney
ride going to Baybay. 
He was carrying his .38 caliber service pistol although, at that time, he was in civilian clothes.

Suddenly, Danilo Ramos heard more or
less five (5) successive gunshots.  When
he looked to where the shots came from, he saw Alberto (Berting)
Almario shoot Eleuterio
Belen twice, hitting the victim in the cheek. 
Danilo Ramos proceeded to his house to report
the incident he had just witnessed to his aunt, Esperanza Abed, who is a
sister-in-law of the victim,
and to the younger son of the deceased. 
Together, they returned to the scene of the crime.

At the time the incident occurred, Pfc. Teodoro
Abadier, a member of the Integrated National Police,
was at his house, approximately four hundred (400) meters distant from the
crime scene, when he suddenly heard a shot.  He immediately went down his house and asked a tricycle driver passing by what had
happened and was informed that Lt. Eleuterio Belen
had been shot.  Pfc. Abadier
immediately got his service firearm and proceeded to the scene of the crime
where he saw many people milling around the body of the victim.  Danilo Ramos then
approached him and informed him about the killing of the victim by Alberto Almario.  Given this
information, Pfc. Abadier, accompanied by other
police officers, proceeded to the house of Alberto Almario
but could not find him.  Thereafter, Pfc.
Abadier returned to the police headquarters and took the statement of Danilo Ramos.  It was
during this investigation that the name of Arthur Ballesteros
was mentioned as another possible eyewitness.  Pfc. Abadier,
accompanied by Danilo Ramos, went to see Arthur Ballesteros,
who, however, denied having witnessed the killing of Eleuterio
Belen.

In the meantime,
the body of the victim was examined by
the municipal health officer of Lumban, Dr. Rogelio Javan.  He found seven (7) gunshot wounds in various parts of the body of Eleuterio Belen.  He concluded that
the victim died as a result of
severe hemorrhage and brain damage secondary to
gunshot wounds [Exh. “A”, pp. 1-3.]

On September 2, 1980
after his arrest, Alberto Almario was investigated by
a group of policemen composed of Lt. William Coronado-INP, Sgt. Victor Malabanan, Sgt. Laureano, Sgt. Luzaran, Sgt. Sernat, and Sgt.
Garcia.  It was in the course of this
investigation that he made an extra-judicial confession (Exh.
“D”) admitting his guilt for the killing of Eleuterio Belen.

On November 5, 1984,
the Regional Trial Court of Laguna rendered judgment the dispositive
portion of which reads:

WHEREFORE, the Court finds ALBERTO (BERTING) ALMARIO of Lumban, Laguna guilty beyond reasonable doubt of the crime
of MURDER as charged in the
information with the aggravating circumstance of disregard due the deceased on
account of his rank as Police
Station Commander of Paete, Laguna and hereby
sentences him to suffer the penalty of DEATH; to pay the heirs of Eleuterio Belen the sum of P50,000.00 as actual and
compensatory damages,  and P100,000.00
for moral damages without subsidiary imprisonment in case of insolvency, with
the accessory penalties provided for
by law and to pay the costs.

Accused HECTOR SAMONTE, ZENON SAMONTE and ISAGANI SACOP are
acquitted of the crime of MURDER for lack of evidence against them.

SO ORDERED. [Rollo,
p. 29.]

Defendant Alberto Almario appealed to
this Court.  In a letter dated April 20, 1988 the Court inquired
from appellant if he wished to continue
with his appeal in view of the automatic commutation of his
death sentence to reclusion perpetua by virtue of Sec. 19(1), Art. III of the 1987
Constitution [Rollo, p. 137.] In his
letter-answer Almario manifested his desire to continue
with his appeal [Rollo,
p. 138.]

In his brief, appellant assigns the following errors:

I.    THE HONORABLE LOWER
COURT ERRED
IN ADMITTING EXHIBIT D, THE
EXTRA-JUDICIAL STATEMENT OF THE ACCUSED DESPITE THE FACT THAT IT WAS EXTRACTED FROM HIM IN VIOLATION OF HIS CONSTITUTIONAL RIGHT.

II.    THE HONORABLE LOWER
COURT ERRED IN REJECTING THE DEFENSE OF THE
ACCUSED.

III.   THE HONORABLE LOWER
COURT ERRED IN CONVICTING THE ACCUSED AND IMPOSING
THE DEATH PENALTY. [Rollo, pp. 61-62.]

I. Taken together, the following evidence supports appellant’s
contention that his extrajudicial confession was obtained from him in violation
of Sec. 20, Art. IV of the 1973 Constitution (Secs. 17 and 12, Art. III of the 1987 Constitution)**:

Firstly, that appellant was physically mauled
and coerced to make his extrajudicial confession is borne by the record [TSN, June 25, 1984, pp. 8-13; Sept. 18, 1981, pp. 5, 13-14.] Buttressing
appellant’s claim is the fact that he immediately reported the force and
violence employed on him in two instances, namely: (1) at the summary preliminary investigation conducted by the
Constabulary Judge Advocate’s office on September 17, 1980 [Original Record, pp. 55-56]; and, (2) when he filed a complaint for maltreatment with the Ministry of National Defense against
the policemen who abused him
[TSN, Sept. 18, 1981, pp. 40-41.]

Moreover, that appellant was brought to the house of Judge
Ragaza, the officer who administered his oath, located in Kalayaan,
Laguna and outside his jurisdiction
as municipal judge of Sta. Cruz, Laguna, on September 3, 1980 between 3:00 and
4:00 o’clock in the morning [TSN, Sept. 18, 1982, pp. 3, 12] casts serious
doubt on the voluntary execution of his extrajudicial confession.

And secondly,
appellant was not informed that
in case he can not afford the services of his own counsel, one would be
provided him for free [People v. Pascual, Jr., G.R. No. 53403, November 12, 1981, 109 SCRA 197.] Neither was it
conveyed to him that if, at any time during the interrogation, he would wish the assistance of counsel, the interrogation would cease until an
attorney is present [People v. Lasac, G.R.
No. 64508, March 19, 1987,
148 SCRA 624.]

Further, the advice given to appellant by the police investigators was a mere repetition of the Constitutional safeguards read to the accused
in a perfunctory manner and is less than full compliance with the mandate of meaningful
recitation of Constitutional rights
[See People v. Nicandro, G.R. No. 59378, February 11, 1986, 141 SCRA 289, 298.] This requirement finds greater
relevance in this case where appellant finished only Grade VI [TSN, June 25,
1984, p. 6], and is, in all probability, “not adequately educated to understand fairly and fully the
significance of his constitutional rights to silence and to counsel”
[People v. Ramos, G.R. No. 59318, May 16, 1983, 122 SCRA 312, 321.]

Accordingly, the guarantees and requirements of
Sec. 20, Art. IV of the 1973 Constitution not having been complied with,
the Court holds that the appellant’s
extrajudicial confession is inadmissible.

II. Having rejected the appellant’s extrajudicial confession, the
Court has to determine whether the evidence on record supports a finding that
he is guilty beyond reasonable
doubt of the killing of Eleuterio Belen.

After carefully sifting the evidence and considering the
arguments of the People and the appellant, the Court is of the opinion, and so
holds, that his guilt has been proven beyond reasonable doubt.  He had been positively identified as the
perpetrator of the crime by prosecution witness Danilo
Ramos [TSN, July 30, 1981,
pp. 21-22.] The latter was only ten (10) meters away from the scene of the crime.  He actually saw appellant shoot the victim twice
with a .45 caliber gun, hitting
the latter in the right cheek [TSN,
July 30, 1981,
pp. 4-6.] That the victim sustained
gunshot wounds at the
cheek was confirmed by
Dr. Javan who conducted the autopsy on the body of the victim.  And according to Dr. Javan, the wounds sustained by the
victim in his cheek and neck were fatal,
involving the brain and part of the cervical vertebra and could have
caused his instantaneous death [TSN, May
19, 1981, pp. 5-6, 8.]

As against this positive identification of a prosecution witness,
appellant’s defense of alibi cannot stand. 
This Court has consistently stated that for the defense of alibi to
prosper, it must be established
by clear and convincing evidence that the accused was at some other place for
such a period of time as to negate his presence at the time and place the crime
was committed [People v. Cruz, G.R. No. 66805, July 9, 1986, 142 SCRA 576;
People v. Pacada, Jr., G.R. Nos. L-44444-45,
July 7, 1986, 142 SCRA 427; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250.] Here, the distance between Tondo, Manila, where appellant claims he was at the time
the killing occurred, and Lumban, Laguna, where the
crime was committed, is only one and a half hour drive by car [TSN, June 25,
1984, p. 41], and can easily be reached by one who, like him, drives a taxi [TSN,
June 25, 1984, p. 4.]

To further add to his defense, Almario
maintains that the testimony of key prosecution
witness Danilo Ramos should not be given credence because (1) “he did not actually see when the victim was fired
at” [Rollo, p. 69]; (2) instead of proceeding to the police outpost
only 50 meters away from where he was standing, he opted to take
a longer route and report the
incident to the victims relatives; and, (3) when cross-examined, he
tried to implicate Francisco Baldemeca but could not
thereafter reconcile this with a statement earlier executed by him
wherein he made no mention having seen the latter participate in the shooting of Eleuterio Belen.

A close examination of the
record of this case would refute the first point raised by appellant.  Danilo Ramos did
not testify that he did not see Belen being shot.  He merely stated that he was not able to witness when the victim was first shot at.  His testimony reads:

Q    Did you see actually the
first shot fired at the chief of Police?

A     No, sir,

Q    You did not see?

FISCAL BAUTISTA:

Already
answered.

COURT:

Sustained.

ATTY. DELOS REYES:

Q    You did not see
when the chief of police was fired
shots (sic) at by the accused?           

A     I did not, sir.

Q    According to you you saw that the chief of police was hit on the right cheek, is that correct?

WITNESS:

A     Yes,
sir.

ATTY. DELOS REYES:

Q    Was that the first or
the second or the third shot?

FISCAL BAUTISTA:

Misleading, Your Honor.

COURT:

Reform the question.

ATTY. DELOS REYES:

Q    According to you, you did
not see the first shot.  What shot was that when you saw the chief of
police was hit on the right cheek?

A     Before they ran away,
sir. [TSN, July 30, 1981, pp. 27-28.]

That Danilo Ramos chose to report the
killing to Belen’s family first does not detract from the credibility of his
testimony.  People react differently to
startling incidents [People v. Radomes, G.R. No.
68421, March 20, 1986, 141 SCRA 548.] In the instant case, Ramos immediately
informed the relatives of the deceased about the killing, instead of going straight to the police.  However, upon his return to the scene of the
crime, he approached a policeman, Pfc. Abadier, and
told him what he witnessed.  On the same
day, he gave his statement to the police [TSN, March 19, 1982, pp. 7-8, 10.] No
unnatural or suspicious behavior could therefore be imputed to Ramos.

Ramos’ statement implicating Baldemeca
in the killing of Eleuterio Belen would
not absolve appellant.  Irrespective of Baldemeca’s participation in the crime, appellant has been established to be
the assailant not once, but thrice, by Ramos (1) when he gave a statement to Pfc. Abadier
on March 6, 1979 [Original Record, pp.
18-19], (2) in the “summary examination”
conducted by the municipal circuit judge
on May 16, 1979 [Original Record,
p. 24], and, (3) when he
testified in court [TSN, July
30, 1981, pp. 4-5].

To further discredit Danilo Ramos’
testimony, appellant makes much of his occupation and relationship with the
victim.  The witness’ source of livelihood as a “kristo”
in the cockpit in no way
detracts from his credibility as a witness. 
And his relationship with the victim, who is his cousin [TSN, July 30,
1981, p. 6], far from rendering his testimony biased, is credible for it would
be unnatural for a relative who is
interested in vindicating the crime to accuse somebody other than the real
culprit [People v. Marciales, G. R. No. 61961, October 18, 1988.]

III. In the information filed against Almario
he was charged with the crime of
murder qualified by the circumstances of
treachery and evident premeditation.  The
trial court concluded that these
circumstances attended the killing of the victim along with the aggravating
circumstance of disregard due the deceased on account of his rank as police
station commander of Paete, Laguna [Rollo, p. 29.]

This Court has
stated that “[t]he circumstances qualifying or aggravating the act of killing a
human being must be proved in an evident and incontestable manner, mere
presumptions or deductions from hypothetical facts not being sufficient to
consider them justified” (People v. Tiongson,
G.R. Nos. L-35123-24, July 25, 1984, 130 SCRA 614, 620.]

In the case at bar, no proof was adduced relative to (1) the time when the appellant determine
to commit the crimes; (2) an act manifestly indicating that he has clung to his
determination; and, (3) sufficient lapse of time between determination and
execution to allow him to reflect upon the
consequences of his act [People v. Camilet, G.R. No. 70392, June 30, 1986, 142
SCRA 402] as would indicate that the aggravating circumstance of evident
premeditation attended the killing of Eleuterio
Belen.

The evidence on record, however, proves that treachery attended
the commission of the crime.  The victim was standing, waiting for a jeepney ride when he was suddenly and without any warning
gunned down by the
appellant.  He sustained seven (7)
gunshot wounds, four (4) of them
fatal [TSN, May 19, 1981,
p. 8.] The sequence of events
happened very fast that, although appellant frontally attacked him at a
distance of more or less only two meters [TSN, July 30, 1981, p. 6], Eleuterio Belen was not even able to draw his gun and
defend himself [See People v. Pedro, G.R. No. L-18997, January 31, 1966, 16 SCRA 57; People
v. Magdueno, G.R. No. 68699, September 22, 1986, 144 SCRA 210.] These facts only prove that appellant
“committed the crime employing means,
methods, or forms in the
execution thereof which tend directly to insure its execution, without risk to himself
arising from the defense which the offended party might make” [Art. 14 (16), Revised Penal Code.]

The evidence on record is
bereft of proof that appellant intended to disregard the respect due the
offended party on account of his rank as Chief of Police [People v. Talay, G.R. No. L-24852, November 28, 1980, 101 SCRA 332.]

Hence, the crime committed by appellant is murder with no
aggravating circumstance.

IV. Art. 2206 of the Civil Code enumerates the damages recoverable
for death caused by a crime as: (a) civil indemnity; and in addition, (b) loss
of earning capacity of the deceased payable to the heirs of the victim; (c) support for a period not exceeding five (5) years payable to a recipient
who is not an heir called to the decedent’s inheritance by succession; and, (d)
moral damages for mental anguish by reason of the death of the deceased due his
spouse, legitimate and illegitimate descendants and ascendants.

The civil indemnity for death is fixed at
P30,000.00.  The
other damages, however, “are
still subject to the determination of the court based on the evidence presented” [Brinas
v. People, G.R. No. L-30309, November 25, 1983, 125 SCRA 687, 696.]

The trial court’s decision is silent as to the civil indemnity that should have been awarded to the heirs Eleuterio Belen. 
Accordingly, appellant should be ordered to pay them the amount of P30,000.00.

The trial court, however, awarded in favor of the heirs of the
victim the amounts of P50,000.00 as actual and
compensatory damages and P100,000.00 as moral damages.  However, the certification
presented by the prosecution with
respect to the actual expenses incurred
by the family of the victim [Exh.
“F”] is not the proof required by law in proving actual damages.  It was presented in lieu of the receipts showing
the actual expenses but it was signed by the station commander of Lumban and a policewoman, who are not the competent parties
to attest to its correctness.  Accordingly, the trial court’s award
of actual damages should be deleted. 
Further, the award of P100,000.00 moral damages
is excessive and should be reduced to P10,000.00.

The penalty for the crime of murder is reclusion temporal maximum to death.  Since the crime has not been attended by any
aggravating or mitigating circumstance, the penalty shall be applied in its
medium period which, in view of this
Court’s pronouncement in the case of People v. Munoz [G.R. Nos. L-38968-70,
February 9, 1989] is reclusion perpetua.

WHEREFORE, appellant having been found guilty beyond reasonable doubt of the crime of murder without any aggravating circumstance, he
is hereby sentenced to reclusion perpetua.  He is further ordered to pay the heirs of the
deceased P30,000.00 as indemnity and P10,000.00 as
moral damages.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., and Bidin, JJ, concur.

Feliciano, J., on leave.

*
General Order No. 6, promulgated on Sept.
22, 1972, prohibits any unauthorized person from keeping,
possessing or carrying outside of his residence any firearm.  General order No. 7, promulgated on September 23, 1972, enumerates the persons allowed to carry firearms.  Pres. Dec. No. 9, promulgated on Oct. 2, 1972, declares
the violation of General Order Nos. 6 and 7 to be unlawful and
provides penalties therefor.

** SEC. 20.
No person shall be compelled to be a witness
against himself.  Any person under
investigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right.  No force, violence, threat, intimidation, or
any other means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible in evidence.