PEOPLE OF THE PHILIPPINES, PETITIONER, VS. LEO T. VILLANUEVA, RESPONDENT.

This is an appeal from the decision of the Regional Trial Court,
Virac, Catanduanes, Branch 43*
convicting the accused-appellant Leo T. Villanueva of the crime of Homicide
with the use of unlicensed firearm, defined and penalized under Presidential
Decree No. 1866, Section 1, paragraph 2 thereof, the decretal portion of which
reads:

“WHEREFORE, the Court finds the accused Leo Villanueva guilty
of the offense in violation of Sec. 1 of Presidential Decree No. 1866 as
charged in the information, and the Court hereby imposes the penalty of
DEATH. The accused is further ordered
to pay the heirs of Deogracias Tubianosa, Jr., as indemnity, the following:

1). For the sole fact of death of the victim
Deogracias Tubianosa, Jr., the amount of THIRTY THOUSAND (P30,000.00) PESOS;

2). For actual compensatory
damages in the amount of TEN THOUSAND SIX HUNDRED (P10,600.00) PESOS;

3). For moral damages in
the amount of TWENTY FIVE THOUSAND (P25,000.00) PESOS;

4). For exemplary damages
in the amount of TWENTY FIVE THOUSAND (P25, 000.00) PESOS; and

5). To pay the costs.

“Lastly, in view of the decision of the Court, finding the
accused Leo Villanueva guilty as charged and the imposition of the death
penalty, his bail bond is considered cancelled and his immediate confinement in
the penitentiary is ordered, pending automatic review by the Supreme Court.

“SO ORDERED.”

Accused-appellant was indicted with the crime of Homicide with
the use of unlicensed firearm in violation of Section 1, paragraph 2 of
Presidential Decree No. 1866 allegedly committed as follows:

“That on or about the 11th day of November 1985, at more or less
4:30 o’clock in the after­noon at barangay San Pedro, Municipality of Viga,
Province, of Catanduanes, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed and in possession of an
unlicensed revolver, without authority to possess the same and without
obtaining the proper permit or license thereof, did then and there,
willfully, unlawfully and feloniously and with intent to kill pointed and fired
said gun against Deogracias Tubianosa, Jr. hitting said victim on the head,
which caused his instantaneous death, to the damage and prejudice of the heirs
of said victim.

“CONTRARY TO LAW.”

Upon arraignment, the accused pleaded not guilty.

At the trial, the
prosecution presented the following witnesses: Roberto Olarte, Dr. Loreto Rojas, Jaime Torrocha, Purita Padilla,
Priscilla Echegaray Tubianosa, Pat. Wilfredo Vitalicio and Pat. Cecilia de Leon
whose testimonies are substantially as follows:

Roberto Olarte declared that sometime on November 11, 1985 at
about 4:00 o’clock in the afternoon, he was walking at San Pedro Street, Viga,
Catanduanes when he met the victim Deogracias Tubianosa, Jr., the latter asked
him to accompany him to the house of Amelia Tulalian to visit a girl named
Analiza Tapar; that said Analiza was not there so they proceeded to the
residence of Mamerto Rojas where a drinking party was going on; on the way, the
victim conveyed his apprehension of the persons with whom he was drinking,
specially Horacio Aquino, Jr., Leo Villanueva, and Santiago Valderrama, Jr.,
because said Horacio Aquino, Jr. was asking for the victim’s chicken and to
insure his return to the place, his watch was left with Aquino; the victim
asked him to join them in the drinking spree but he declined; he then stayed
inside the store which adjoins the residence of Rojas; after the lapse of
twenty (20) minutes, he endeavored to peep through a window near the garage; he
saw five (5) persons drinking, among them were: the victim, Tubianosa, Jr., Horacio Aquino, Jr., Santiago
Valderrama, Jr., Leo Villanueva, and another person whom he did not readily
recognize as said person’s back was towards him; that he continued to wait for
Tubianosa, Jr. in the nipa hut shed inside the compound which was six (6)
meters away from the place where the group was drinking; that after fifteen
(15) minutes of waiting, he heard a heated discussion in the place where the
group was. He peeped again through the
window and observed that the group with whom Tubianosa, Jr. was drinking
appeared angry as they were shouting at the latter; Aquino, Jr. shouted
saying: “ITAO MO NGANI YO
MANOK.” (Give the chicken); Valderrama, Jr. followed up by uttering: “ITAO MO YO MANOK O MAI.” (Are you
going to give the chicken or not); accused Leo Villanueva also uttered: “PARA MANOK MAI MO IKATAO HA.” (It
is only a chicken you can not give ha?) and at the same time pointed a gun at
Tubianosa, Jr., when he saw the accused poking a gun at the victim, he
immediately left the place and sought help from the victim’s brother Jesus Tubianosa
whose house is situated twenty (20) meters
from the said place; that upon arrival thereat, he heard a gunshot; that as the
victim’s brother was not at home, he decided to go home (TSN, pp. 21-40,
February 19, 1986).

Jaime Torrocha, testified that around 4:30 in the afternoon of
November 11, 1985, he was looking for Santiago Valderrama, Jr. as the latter’s
visitor from Virac has just arrived. He
found Valderrama at the house of Mamerto Rojas, drinking in the company of
Tubianosa, Jr., Leo Villanueva, Beniano Ogena, and Horacio Aquino, Jr.. Valderrama asked him to wait awhile as the
former would ask permission from the group; that Aquino, Jr. gave him a drink.    While drinking, Benigno Ogena left the
place followed by Valderrama, Jr., he then took Valderrama, Jr.’s seat; that
while he was in the act of taking a second drink, he heard a gunshot; that
suspecting he might have been hit, he felt his body with his two hands; and
when he looked around, he saw the accused Leo Villanueva holding a gun and the
victim Tubianosa, Jr. was slumped towards his right side, his left hand still
on the armrest of the chair. He also
saw blood on the right side of the victim’s face; that after having witnessed
the incident, he immediately left and on his way out he saw Valderrama, Jr.
vomitting outside; later on, he was investigated and his statement about the
incident was taken by the Philippine Constabulary (TSN, pp. 43-52, February 20,
1986).

Purita Padilla, a resident of Viga, Catanduanes, declared that at
around 5:00 o’clock in the afternoon of the incident, she was also at the store
of Mamerto Rojas buying dried fish; that while there, she heard a gunshot and
someone said, “Nagdaan sabi si Bagwang.” (Bagwang died); thereafter,
she saw three (3) persons: Jimmy
Torrocha, Santiago Valderrama, Jr., and Leo Villanueva coming out of the bodega
of Mamerto Rojas; that the three (3) people mentioned were immediately followed
by Pat. Cleto Turreda of the Viga INP; that a vehicle of the police arrived and
two policemen proceeded inside the house of Rojas; that subsequently, they
carried the body which she recognized as that of Deogracias Tubianosa, Jr., the
one she referred to earlier as “BAGWANG” (TSN, pp. 52-55, February
20, 1986).

Station Commander Domingo Olfindo of the Viga INP affirmed that
as a consequence of this incident and on the basis of the verbal report of
Geronima Rojas, occupant of the place where the incident occurred, he also went
to the place of the incident; that he found the victim Deogracias Tubianosa,
Jr. still seated on the chair in the sala, with his head inclined to the right,
with blood on the forehead; that he ordered the victim to be brought with
dispatch to the hospital but said victim was pronounced dead by the doctor on
duty upon arrival; that he further ordered Pfc. Alejandro Torio to take the
statements of the persons who were with the victim, particularly: Jaime Torrocha, Leo Villanueva, Santiago
Valderrama, Jr., and Horacio Aquino, Jr. but the persons mentioned refused to
give any statements; that on November 12, 1985, he reported the matter to the
Provincial Fiscal and requested assistance for the conduct of an autopsy on the
victim’s body; that in coordi­nation with Sgt. Cecilio de Leon, further
investigation of the case was made; Police Wilfredo Vitalicio with some
companions were dispatched to Bagamanoc to apprehend Leo Villanueva as
information reached the police authorities that said accused is about to
escape; that sometime on November 13, 1985, Pat. Vitalicio together with Danny
Turreda upon reaching Bugao were informed by Roberto Evangelista that Leo
Villanueva was there that day; and that Leo Villanueva was found in Tabugoc and turned over to Sgt.
Asetre of the Philippine Constabulary (TSN, pp. 63-71, May 15, 1986).

Pat. Wilfredo Vitalicio corroborated the testimony of Station
Commander Olfindo that he was ordered to search for accused Leo Villanueva in
connection with the death of Tubianosa, Jr.; that he found accused at Tabugoc
and invited the latter to go with him as other teams are looking for him (TSN,
pp. 80-91, June 17, 1986).

Corporal Cecilia de Leon
declared that on November 12, 1985 at around 6:00 o’clock in the evening, he
was assigned together with Sgt. Asetre to investigate the incident regarding
the death of Tubianosa, Jr.; that among those whose statements were taken were
Jaime Torrocha and Horacio Aquino, Jr.; that the latter pinpointed accused Leo
Villanueva as the one who fired the gun; and that after the investigation, he
filed a complaint against accused Leo Villanueva for homicide thru reckless
imprudence (TSN, pp. 91-97, June 17, 1986).

Dr. Loreto Rojas, Municipal Health Officer, Ministry of Health,
Bato, Catanduanes testified that at about 3:20 in the afternoon of November 12,
1985, he conducted an autopsy on the body of the victim Deogracias Tubianosa,
Jr.; and that he confirms postmortem findings stated in the autopsy report
(Exhibit “A”, p. 93, Original Records) which states:

“Wound, gunshot, (entrance) roughly oval in shape, .5 cm. in
diameter surrounded by a contuso­-abraded collar 1 cm. in diameter almost
evenly distributed around the gunshot wound with burn semi-circular below its
lower half located at the forehead right aspect 39 inches from the sole of the
right foot 4 cm. from the anterior median line, 16 cm. above the superior
border of eyebrow, right directed medially, posteriorly and upwards passing
through the scalp perforating the cerebral substance then making a wound (exit)
with an embedded slug triangular in shape 2 cm. by 3 cm. by 3.5 cm. with
comminuted skull fractures at the posterior median and superior border of the occipital bone, 9 cm. with a vertical line
drawn above a horizontal line connecting superior border of ears right and
left.

CAUSE OF DEATH:

Hemmorhage, cerebral, severe, secondary to gunshot wound forehead right aspect.”

He identified and explained the exhibits referred to him during
his testimony, particularly his findings in the autopsy report and attached
diagram (Exhibit “B”, p. 94, Ibid.) and the pictures taken during the
conduct of the autopsy (Exhibits “C” to “C-7”, pp. 95-102,
Ibid.). He concluded that massive
hemorrhage secondary to gunshot wound was the cause of death of the victim; the
missile having traversed the cerebral substance which caused severe hemorrhage
due to the gunshot wound (TSN, pp. 3-20, February 19, 1986).

Priscilla Echegaray Tubianosa, mother of the victim stated that
the victim was a commerce graduate major in accounting; that prior to his son’s
death, he has already obtained a passport (Exhibit “F”, Original
Records) preparatory to his going abroad to work; that she spent the total
amount of P10,600.00 for the burial and miscellaneous expenses of the victim
Deogracias Tubianosa, Jr. (TSN, pp.
72-74, May 15, 1986).

In the course of the trial, the prosecution and the defense
stipulated that accused Leo Villanueva is not a holder of a licensed firearm as
attested by a certification issued by the Headquarters of Catanduanes
Constabulary Command, Virac, Catanduanes (Exhibit “I”, p. 107,
Original Records).

The defense presented as witnesses: accused Leo T. Villanueva, Melia Tulalian Molod and Geronima
Rojas.

Accused Leo T. Villanueva declared that on November 11, 1985, he
was preparing to go to Tabugoc, Pandan, Catanduanes in connection with his
business of buying and selling carabaos and pigs but because he was invited by
the victim Deogracias Tubianosa, Jr. to drink gin at the house of Mamerto
Rojas, he was unable to proceed to his destination; that he and Tubianosa, Jr.
drank gin from 8:00 o’clock in the morning up to 4:00 o’clock in the afternoon
of the same day; that they were joined later by Horacio Aquino, Jr., Santiago
Valderrama, Jr., Beniano Ogena and Jimmy Torrocha; that the group consumed five
(5) cuatro cantos of Ginebra San Miguel; that they did not take their lunch as
they had venison as “pulutan”; that while drinking, Tubianosa kept on
harping on his string of bad luck, such as: having failed in the CPA examination, having been rejected by the girl he
was courting, Analiza Tapar and not being able to go abroad; that at around
4:00 o’clock in the afternoon, a sudden explosion was heard by the group; that
thereafter, he heard something fall on his right side which turned out to be a
gun; that he saw Tubianosa, Jr. slumped with his back leaning on the backrest
of the chair; that he picked up the gun and put it on the table where they were
drinking; that he observed that Tubianosa, Jr. was bleeding from the side of
his forehead; that he left the place without doing anything together with
Horacio Aquino, Jr. and proceeded to his residence. During the time the incident was investigated, he refused to give
any statement; and thereafter he was sent home. On November 13, 1985, Pfc. Wilfredo Vitalico, Bgy. Captain Romeo
Pascua and Danilo Torredo went to see him at Tabugoc while intending to pursue
his aborted trip to buy pigs and carabaos. Subsequently, he was turned over to the Philippine Constabulary. He stayed in the camp from November 13, 1985
up to the last week of January 1986 for security reasons. He denied having poked a gun at the victim
Tubianosa, Jr. as claimed by Olarte nor was there a heated discussion about a
chicken. He explained that his failure
to give any statement to the police investigator about the gun explosion was by
reason of fear and that he did not surrender the gun because after placing the
same on the table, he left the place. He added that the victim himself, Tubianosa Jr. could have caused the
gun to explode but not Horacio Aquino, nor Jimmy Torrocha (TSN, pp. 130-168,
August 25, 1986).

Amelia Tulalian Molod, landlady of Analiza Tapar, was presented
to discredit the testimony of Olarte. She stated that the victim Tubianosa Jr. used to go to their house in
1985 because he was courting Analiza; that the last time that Tubianosa Jr. went
to her residence was on November 8, 1985; and that she did not see the victim and Roberto Olarte go to their house
on November 11, 1985 (TSN, pp. 101-110, August 6, 1986).

Geronima Rojas, likewise refuted Olarte’s testimony, and declared
that she was the one tending the store on November 11, 1985; that prior
to the moment she heard the gunshot, she did not see Olarte in her
store (TSN, pp. 110-126, August 6, 1986).

On rebuttal the prosecution presented Priscilla Tubianosa and
Linda Alindogan.

When recalled to the witness stand, Priscilla Tubianosa affirmed
that the victim Tubianosa Jr. graduated at the Catanduanes State Colleges with
a degree in Commerce, major in Accounting in March 1984; that her son took the
CPA Board Examination in October 1984 in Manila the result of which was
released in January 1985; that although her son failed in said board
examination, he was not troubled as he can take another examination; and that
Tubianosa Jr. was able to get the requisite passport for working abroad; that
prior to his death, Tubianosa Jr. has not shown any unusual behavior which
would induce him to commit suicide (TSN, pp. 176-180, September 9, 1986).

Linda Alindogan, public school
teacher and a resident of San Isidro, Viga, Catanduanes rebutting the testimony
of defense witness Geronima Rojas to the effect that the latter attended to
only two customers prior to
hearing the gunshot, declared that after being dismissed from her work
as classroom teacher at San Isidro, at around 4:30 o’clock in the
afternoon of November 11, 1985, she and her husband proceeded to the store of
Geronima Rojas for the purpose of exchanging her treasury warrant, pay her
indebtedness and buy some goods thereat; and that she stayed in the store for
about five (5) minutes and while there, she saw several people inside and
outside the store (TSN, pp. 172-176, September 9, 1986).

During the course of her testimony, Priscilla Tubianosa was asked
by the Court whether an attempt or proposal to settle the case was ever made by
the accused or his relatives. The
prosecution, realizing the significance of the fact sought to be elicited,
moved for reopening of the case after it was submitted for decision for the
reception of additional evidence which the trial court granted (CFI Decision p.
16).

Jesus Tubianosa, brother of the victim Deogracias Tubianosa, Jr.,
as additional prosecution witness testified that two or three days after the
incident occurred, Atty. Romulo Atencia who is the brother-in-law of the
accused asked him (Jesus Tubianosa) what the Villanuevas (family of the
accused) can do to help the Tubianosas (victim’s family), saying that “the
thing that happened between Tubianosa Jr. and the accused was an
accident.” (TSN, 184-195, November 10, 1986).

Based on the circumstantial evidence proffered by the
prosecution, the trial court found accused-appellant Leo T. Villanueva guilty
beyond reasonable doubt of the crime of Homicide with the use of unlicensed
firearm, in violation of Section 1, par. 2, Presidential Decree No. 1866 and
sentenced him to death.

This case was elevated to this Court on automatic review.

In his brief, accused-appellant assigns the following errors:

I

THE LOWER COURT ERRED IN
ACCEPTING THE BIASED, INCREDIBLE AND COMPLETELY UNTRUSTWORTHY TESTIMONY OF
PROSECUTION WITNESS ROBERTO OLARTE.

II

THE LOWER COURT ERRED IN APPRECIATING HEARSAY EVIDENCE AGAINST THE
ACCUSED-APPELLANT.

III

THE LOWER COURT ERRED IN
HOLDING THAT “FROM THE ACCUSED LIPS HAS BEEN ELICITED THE FACT THAT AT THE
TIME WHEN THE EXPLOSION WAS HEARD, HE WAS THE ONE HOLDING THE GUN” WHEN NO
SUCH EVIDENCE EVER APPEARS ON RECORD.

IV

THE LOWER COURT ERRED IN
CONVICTING THE ACCUSED-APPELLANT ON ALLEGED “CIRCUMSTANTIAL EVIDENCE”
WHICH CANNOT LOGICALLY OR LEGALLY PRODUCE ANY INFERENCE OF GUILT, MUCH LESS
GUILT BEYOND REASONABLE DOUBT.

V

THE LOWER COURT ERRED IN
COMPLETELY DISREGARDING THE TESTIMONY OF THE ACCUSED-APPELLANT AND THE OTHER
DEFENSE WITNESSES.

VI

THE LOWER COURT ERRED IN HOLDING THAT AN UN­LICENSED FIREARM WAS
USED.

VII

THE LOWER COURT ERRED IN
NOT ACQUITTING THE ACCUSED-APPELLANT DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH HIS GUILT BEYOND
REASON­ABLE DOUBT.

The principal thrust of accused-appellant’s appeal revolves on
the credibility of witnesses.

The appeal is lacking in merit and must inevitably fail.

It is a fundamental Iegal aphorism that the conclusions of the
trial judge, regarding the credibility of witnesses, command great respect and
consideration, especially when they are supported by the evidence on record and
will not ordinarily be disturbed or interfered with (People vs. Aboga, 147 SCRA
404, [1987]; People vs. Pilapil, 147 SCRA 528 [1987]; People vs. Dava, 149 SCRA
582 [1987]; People vs. Picardal, 151 SCRA 170 [1987]; People vs. Alcantara, 151
SCRA 326 [1987]; People vs. Ornoza, 151 SCRA 495; People vs. Cruz, Sr., 151
SCRA 609; People vs. Legaspi, 151 SCRA 670; People vs. Dimacali, 153 SCRA 454
[1987]; People vs. Nulla, 153 SCRA 471; People vs. Francia, 154 SCRA 495
[1987]). The only exception to the rule
is when the trial court plainly overlooked certain facts and circumstances of weight and influence which, if
considered, will materially alter the result
of the case (People vs. Ramos, 153 SCRA 276 [1987]). The present case does not appear to be an exception to the rule.

Accused-appellant’s conviction of the crime charged is based on
circumstantial evidence, there being no eyewitness to the shooting presented by
the prosecution. The two vital
prosecution witnesses Roberto Olarte and Jimmy Torrocha did not categorically
pinpoint accused Leo Villanueva as the one who fired the gun and inflicted the
fatal wound that caused the victim’s death.

The requisites for conviction based on circumstantial evidence
are: (1) there is more than one
circumstance; (2) the facts from which the inference are derived must be
proven; and (3) the combination of all the circumstances is such as to produce
a conviction of guilt beyond reasonable doubt (People vs. Pimentel, 147 SCRA 25
[1987]). The circumstances proved
should constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the
author of the crime (People vs. Magallanes, 147 SCRA 92 [1987]) and that
circumstantial evidence must fairly exclude every reasonable hypothesis of
innocence to warrant conviction (Dorado vs. Court of Appeals, 153 SCRA 420
[1987]).

As found by the trial court, the facts established by the
evidence are as follows:

“x x x (T)he cause of death of victim Tubianosa, Jr., is
Hemorrhage, cerebral, severe, secondary to gunshot wound forehead, right
aspect, a fact testified to by Dr. Loreto T. Rojas, Municipal Health Officer of
Bato, who conducted the necropsy, duly supported by the autopsy report (Exh.
“E”); that prior to the fact that a gunshot was heard, a group of men
which include the victim Deogracias Tubianosa, Jr., the accused Leo Villanueva,
Horacio Aquino, Jr., Santiago Valderrama, Jr., and Beniano Ogena were engaged
in a drinking spree starting at 8:00 o’clock in the morning to 4:00 o’clock in
the afternoon; that immediately prior to the gun explosion being heard by
witness Olarte, he saw Leo Villanueva poking a gun at the victim Tubianosa, Jr.
with Horacio Aquino, Jr., Santiago Valderrama, Jr., and the accused Leo
Villanueva himself shouting at the victim uttering as follows: ‘ITAO MO NGANI YO MANOK.’ (Give the
chicken.) — by Aquino, Jr.: ‘ITAO MO
YO MANOK O MAI.’ (Are you going to give the chicken or not) — by Valderrama,
Jr.: ‘PARA MANOK MAI MO IKATAO HA.’ (It
is only chicken, you cannot give ha.) — by Leo Villanueva; that immediately
after the gunshot was heard, Jaime Torrocha, one of the three persons who were
beside the place where the incident in question happened, (aside from the
victim) saw Leo Villanueva holding the gun; that immediately after the gunshot
was heard, victim Tubianosa, Jr. was seen also by Torrocha slumped on the
chair, with blood on the right side of his face; that the gun held by accused
Leo Villanueva was never found; that Leo Villanueva, when requested by Station Commander
Domingo Olfindo to give his statement about the incident refused; that Leo
Villanueva left Viga and was pursued by the police authorites and found in
Tabugoc, Pandan; that upon return of the police authorities in Bagamanoc with
Leo Villanueva, the latter was turned over to Sgt. Asetre of the PC, stationed
in Virac on November 13, 1985; that thereafter, Leo Villanueva allowed himself
to be confined allegedly for security reasons at the PC Headquarters in Virac
up to the last week of January, 1986.” (Rollo, pp. 32-33).

The facts established by
the direct and positive testimonies of prosecution witnesses and other evidence
show that the requirements for circumstantial evidence to sustain a conviction
are present in this case. More than
that, the series of events constitute an unbroken chain leading to one fair and
reasonable conclusion pointing to the accused Leo Villanueva as the perpetrator
of the crime charged.

Among others, they are: (1) that prior to the incident, Roberto OIarte saw appellant poking a
gun at the victim; when Olarte ran to the house of the victim’s brother, which
is more or less seventy (70) meters from the place where the group was, to seek
help, he heard a shot (TSN, pp. 28-29, February 19, 1986) which by itself is an
almost undisputable evidence that the victim’s wound was caused by the same
gunshot (People vs. Agbot, 106 SCRA 325 [1981]); (2) that Horacio Aquino, Jr.,
one of appellant’s companions in
the drinking session, executed a statement (Exhibits “H” and
“H-1”, pp. 105-106, Original Records) before Corporal Cecilio de Leon
pinpointing appellant as the one who fired the gun (TSN, pp. 94-95, June 17,
1986); (3) that right after
having heard the shot, Jaime Torrocha, a party to the said drinking session,
saw appellant holding a gun
(TSN, p. 48, February 20, 1986); (4) that the same shot was heard by Purita Padilla while buying dried fish at the store where the group was
drinking and later she saw Jimmy Torrocha,
Santiago Valderrama and appellant come out of the bodega and the lifeless body
of the victim carried by two (2) policemen (pp. 53-54, Ibid); (5) that an autopsy on the body shows that the
cause of the victim’s death was hemorrhage, cerebral, severe, secondary to
gunshot wound, forehead, right aspect as testified to by the municipal health
officer Dr. Loreto Rojas (TSN, p. 13, February 19, 1986).

Mere denials of the accused as to his participation in the crime
are only self-serving, negative evidence which cannot outweigh circumstantial
evidence clearly establish­ing his active participation in the crime (People
vs. Jara, 144 SCRA 516 [1986]).

The defense theory to the effect that the victim committed
suicide is not plausible. Aside from
the fact that the victim did not display unusual behavior because of his
alleged string of bad luck indicative of an intention to commit suicide, it is
indeed unthinkable that he would commit suicide in the presence of several
people who could easily have dissuaded him from such purpose (TSN, pp. 179-180,
September 9, 1986).

There is absolutely no evidence showing that the fatal weapon
(gun) came into the possession of the victim to enable him to commit suicide
with the gun as instrument. On the
contrary, the said gun was all the time in the possession of
accused-appellant. Before the gun
explosion was heard, appellant was seen by Roberto Olarte poking the said gun
at the victim. After the gun exploded,
the appellant was seen by Jaime Torrocha holding the gun inside the drinking room
while the victim was slumped on the chair nearby with blood oozing from his
forehead. Otherwise stated, nobody had
the opportunity to fire the gun at the victim except the accused-appellant who was in possession of the fatal
weapon at the time of the incident.

No less important is the fact that the conduct of the accused
right after the shooting are inconsistent with his alleged innocence, such
as: (a) he allegedly left the gun at
the center table when he could have surrendered the same to the police
authorities if indeed he had nothing to do with the shooting; (b) he refused to
give any statement to the police; (c) he saw the victim Deogracias Tubianosa,
Jr. who was his friend and
neighbor, profusely bleeding in the head, but instead of helping the former by
bringing him to the hospital, the accused immediately left the scene of the
incident; and (d) he allowed himself to be confined at the PC Barracks from November 13, 1985 up to the last week of
January 1986 with the
acquiescence of his counsel for allegedly security reasons despite the fact
that no charges have as yet been filed against him.

The trial court did not err in admitting the testimony of
Corporal de Leon regarding the
fact that a statement was made by Horacio Aquino, Jr. pinpointing accused-appellant
as the one who fired the gun. The
purpose of placing said statement in the record is merely to establish the fact
that the statement was made and/or the tenor of such statement. As ruled by this Court in People vs. Cusi,
Jr. (14 SCRA 944 [1965]), Corporal
de Leon’s testimony does not amount to hearsay evidence.

Thus, the fact that the gun used in the killing was not recovered
and not presented as evidence is of no moment. The corpus delicti having been duly established by the
prosecution, the burden of proof to show that the firearm used was licensed
rests upon the accused. Appellant’s
failure to do so constrains this Court to
sustain the verdict of the trial court that the crime of homicide was
committed with the use of an unlicensed firearm.

WHEREFORE, the
appealed judgment is hereby
AFFIRMED with the modification that the penalty of death is commuted to reclusion perpetua
(Sec. 19[1], Art. III, Constitution) and as to the indemnification for death of
the victim which is hereby increased to P50,000.00. Costs against appellant.

SO ORDERED.

Gutierrez, Jr., (Chairman), Feliciano, Davide, Jr., and Romero, JJ., concur.

* Penned by Judge Jose
D. Pajarillo