G.R. No. 88098. June 26, 1991
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF/APPELLEE, VS. FEDERICO TORIBIO ALIAS “FEDING”, DEFENDANT/ APPELLANT. NARDING TORIBIO, REYSON TORIBIO AND FREDDIE TORIBIO ALIAS “EBOK”, A…
FELICIANO, J.:
Federico Toribio appeals from the
decision of Regional Trial Court, Branch 6 of the 6th Judicial Region, Kalibo, Aklan, dated 13 February
1989 convicting him of the crime of murder and sentencing him to suffer the
penalty of reclusion perpetua and to
pay the heirs of the victim Romulo Sonio the sum of P30,000.00 as moral damages in addition to
costs.
An information dated 11
November 1985, charged appellant Federico Toribio
together with his co-accused Narding Toribio, Reyson Toribio and Freddie Toribio with
the crime of murder committed as follows:
“That on or about the 3rd day of August 1985, in the evening,
in Barangay Tibiao,
Municipality of Altavas, Province of Aklan, Republic of the Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with
deadly weapons, consisting of unlicensed firearm known as ‘pugakhang‘ and bolces,
conspiring together and helping one another, with evident premeditation
treachery and intent to kill, did then and there wilfully,
unlawfully and feloniously shoot, fire at one ROMULO SONIO, thereby inflicting
upon the latter, physical injuries, to wit:
EXTERNAL
FINDINGS
1. Gunshot Wound multiple chest left.
POE – Chest left anterior axillary line level of nipple, penetrating, no exit.
POE – Chest left 6 ICS below nipple,
penetrating, no exit.
2. Gunshot Wound Abdomen
POE – Epigastrium
penetrating, no exit.
3. Abrasion Abdomen – epigastric
region.
4. Gunshot Wound Thigh left multiple.
POE – 5 entrance anterior middle third thigh
thru and thru.
5. Gunshot Wound leg left.
POE – leg middle third anterior thru and thru.
INTERNAL
FINDINGS
1. Gunshot wound chest left penetrating, perforating
left side heart and lung, bullets lodged at the left side of 1st and 2nd thoraxic vertebrae.
2. Gunshot wound abdomen epigastric,
perforating stomach & transverse colon.
3. Fracture tibia febula
(sic) B/3rd left.
per Autopsy Report signed by Dr. Rogelio G.
Rivera, Officer-in-Charge, Altavas, District
Hospital, hereto attached as Annex ‘A’ and made integral part of this
information, which injuries caused the death of Romulo
Sonio per Certificate of Death signed by the same
physician, likewise hereto attached as Annex ‘B’ and made integral part of this
information.
That the following aggravating circumstances are present in the
commission of the crime.
1. the crime was committed with the use of
unlicensed firearm: and
2. the offense was committed by armed band.
That as a result of the criminal acts of the accused, the heirs of
the victim suffered the following damages:
a. P30,000.00 for the death of Romulo Sonio; and
b. P50,000.00 for moral damages.
All contrary to law.”[1]
At the arraignment, all four (4) accused pleaded not guilty to
the crime charged.
The trial court rendered in due time a decision convicting only the appellant Federico Toribio of the crime of murder. The dispositive
portion of this decision reads:
“WHEREFORE, judgment is hereby rendered finding the accused
Federico Toribio GUILTY beyond reasonable doubt of
the crime of murder and in accordance with the provisions of Article 64, par. 1
Revised Penal Code, sentences him to thirty (30) years imprisonment of reclusion
perpetua; to pay the heirs of the late Romulo Sonio the sum of
P30,000.00; and to pay the costs.
Accused Federico Toribio, having been
convicted of a capital offense, the bail bond posted for his temporary liberty
is hereby ordered cancelled and may now be returned to their lawful owners.
For insufficiency of evidence of conspiracy, accused Freddie Toribio, Narding Toribio and Reyson Toribio are hereby ACQUITTED of the crime of murder; their
bail bonds ordered cancelled and may now be returned to their lawful owners;
and with costs de oficio.
SO ORDERED.”[2]
The appellant argues that the
trial court erred in the following respects:
1. in giving much weight to the weak evidence of
the prosecution instead of relying on the credible and unrebutted
testimony of the witnesses for the defense; and
2. in
finding appellant guilty beyond reasonable doubt of the crime of murder and in
penalizing him under Article 64, paragraph I of the Revised Penal Code.
The evidence for the prosecution tended to establish the
following as the relevant facts:
The house of the victim Romulo Sonio and his wife Mercedita Sonio in Barangay Tibiao, Altavas, Aklan is surrounded by coconut trees and banana plants and
stands near a ricefield. On 3
August 1985, at around 5:00 o’clock
in the afternoon, the victim and his wife Mercedita
left their house to tap tuba from one of the nearby coconut trees situated 100
meters more or less from their house.[3]
The victim’s brother, Gerardo Sonio, and a friend, Romeo Patricio, were at that
time in Romulo’s house having been earlier fetched by
the victim. Thus, Gerardo, the children
of the victim, and Romeo (now deceased) were in the meantime left inside the
house.
Upon reaching the particular coconut tree he had chosen, the
victim promptly climbed up while Mercedita was left on the ground looking up at him. At the top of the tree, the victim shouted to
Mercedita to go home and prepare their supper.[4]
Accordingly, Mercedita went back home and it was
while she was preparing their supper that she heard a gunshot followed by the
victim’s cry for help.[5]
She immediately ran out towards the direction of the coconut tree Romulo had climbed.
Gerardo, Mercedita’s children and Romeo who had also heard the
gunshot, followed her. Mercedita from a distance
of about five (5) arm-stretches, saw the appellant aiming his shotgun (locally
known as “pugakhang“) at the victim who was still on top of the
coconut tree. The victim attempted to
dodge the anticipated shots and moved his body from side to side, causing the
leaves of the coconut tree to sway.[6]
But, appellant persisted and
fired again at the victim, this time causing
the latter to fall about twelve (12) feet to the ground.[7]
Mercedita, fearing for her own life, ran and hid
herself in the ricefield. When she saw appellant and his co-accused
leave the scene of the crime, she emerged and approached her fallen husband.[8]
In the meantime, Gerardo upon seeing his brother Romulo fall from the coconut tree, turned to appellant and
demanded to know why the latter had shot Romulo.[9]
Appellant did not respond and instead pointed his gun menacingly at Gerardo and
said “You also.”[10]
Thereafter, appellant and his companions hurriedly left the crime scene. Gerardo heard his brother groan and came to
the latter’s side to help him
but, a few minutes later, Romulo expired. Gerardo proceeded to his parents’ house in Kinsay-an to tell them the sad news.
Two (2) of the children of the victim went to the house of Guillermo Blacquio,
Jr., a barangay councilman of Tibiao, to report the death of their father. The children also went to see Pablito Espino, a barangay captain, to ask him to look into the murder
of their father. Espino,
without going to the scene of the crime and actually investigating the matter,
and relying upon information supplied by Blacquio who
had allegedly examined the cadaver of the victim, reported to the Desk Officer
of the Integrated National Police (“INP”) of Altavas,
Patrolman Jesus Dominguez, that the victim, while on top of a coconut tree, had
been shot to death by unidentified men.[11]
The next day, Police Investigator Junio
Salazar examined the body of the victim and talked to Gerardo. Gerardo informed Salazar that it was
appellant Federico Toribio who had shot his brother.[12]
Gerardo did not, at that time, execute a sworn statement. During a subsequent family conference,
however, it was decided that Gerardo should execute a sworn statement in order
to hasten the filing of criminal charges against appellant. Accordingly, on 4 September 1985, Gerardo executed a sworn statement in
the Altavas Police Station, in which he once more
identified appellant as the gunman who had shot Romulo
Sonio.[13]
Appellant Federico Toribio’s version of
the facts was as follows:
On the day of the killing, appellant and his son Reyson were working as laborers at a fishpond managed by
one Federico Gulac in Barangay
Bay-ang, Batang, Aklan, having gone thereon 29 July 1985. Batang was about fifteen (15) kilometers from Tibiao. Appellant
first learned about Romulo Sonio’s
death when he (appellant) returned to Tibiao on 5 August 1985.
Appellant also contends that the victim and his two (2) brothers,
Polong Sonio and Emeterio Sonio, were widely known
in Tibiao to be robbers and cattle rustlers. The victim’s two (2) brothers, Polong and Emeterio, had earlier
been killed by men believed to be members of the New People’s Army
(“NPA”) and so, appellant argued, the victim Romulo
Sonio was probably killed by the NPAs,
too.
The issues to be resolved here are whether or not appellant’s
guilt of the crime of murder had been shown beyond reasonable doubt, and
whether or not the qualifying circumstance of treachery had been properly
proved and appreciated.
At the trial, Mercedita Sonio was firm and categorical in identifying appellant
Federico Toribio as the man she had seen shoot and
kill her husband:
“x x x x x x x x x
Q. And
you stated that he died when he fell to the ground. How did you know that he was already dead
when he fell to the ground?
A. Because
I was already there.
Q. And
you stated that you know the accused for so many years. Did you see them during the time of the
shooting of your husband?
A. Yes,
ma’am.
A. I
saw them hiding behind the coconut tree.
x x x x x x x x x
Q. And
when you arrived in the crimescene where your husband
fell down, what did the four accused do, if they did anything?
A. That
they shoot my husband.
Q. You stated that the four accused were hiding
at the coconut tree. How were you able
to see them when they were hiding at the coconut tree?
A. I
saw them because they were pointing a gun to my husband.
Q. And
who among the four was aiming the gun towards your husband?
A. Feding Toribio.
Q. About
how far was this Feding Toribio
from your husband when you said Feding Toribio was aiming
a gun against your husband?
A. About
two armstretch.
x
x x x x x x x x.”[14]
(Underscoring supplied)
Mercedita’s positive identification of
appellant as the killer was
corroborated by the equally definite testimony of Gerardo Sonio
that indeed appellant had shot and killed Romulo Sonio:
“x x x x x x x x x
Q. Whom
did you see shooting your brother at a distance of 5 armstretch
away?
A. Federico
Toribio was the one.
Q. How many explosions did you hear you said that while you were in your house around
100-150 you heard one explosion, is that correct?
A. Yes,
sir.
Q. You said that you were 5 armstretch away at the scene of the incident when you saw
Federico Toribio aiming his gun. Did you hear any explosion from that gun?
A. Yes,
your Honor, there was an explosion.
Q. To
whom was that gun being pointed at the time by Federico Toribio
before you heard it
explode again?
A. To
my brother who was on top that coconut tree who was tapping tuba.
Q. And
after you heard the explosion, what happened to your brother who was then on
top of the coconut tree?
A. He
was hit.
Q. And
what happened to him when
he was hit?
A. He
fell.
Q. And
when he fell down, what happened again if anything more happened?
A. I
remarked them why they shot him.
Q. And
what did they say?
A. They
turned on me and aimed that gun towards me saying ‘You also’ after that they
ran away.
x
x x x x x x x x.[15]
(Underscoring supplied)
The trial court found the testimony of Mercedita
and Gerardo as positive, credible and reliable.
The Court finds no reason to disagree with the findings of the trial court on this point. The constant rule is that “the findings
of the trial court as to the
credibility of the witnesses are to
be given great weight and a high degree of respect by the appellate
court.”[16]
While proof of the killer’s motive is not
essential for conviction, it is pertinent to point out that appellant Federico Toribio
had admitted having denounced to the NPA the two (2) brothers of Romulo Sonio, both of whom were
later killed. The trial court found that appellant hated the Sonio brothers (including Romulo Sonio) with a passion:
“There is no doubt in the mind of the Court that accused
Federico Toribio shot and killed the deceased with a
shotgun locally known as ‘pugakang‘ while the
deceased was on top of a coconut tree tapping tuba. He was not only positively identified by the
prosecution witnesses but also accused Federico Toribio
admitted having allegedly told the NPA that deceased Polong
Sonio and deceased Emeterio
Sonio, brothers of the late Romulo
Sonio, were robbers and even led the NPA to the two
(2) deceased brothers and identified them so that the NPA could kill them. While the killing of the two (2) brothers of
deceased Romulo Sonio was
not the murder charged in the information, and does not by any means amount to
direct evidence against accused Federico Toribio, yet
the same is competent evidence to prove the intent of accused Federico Toribio in killing deceased Romulo
Sonio which was charged in the information. He hated the Sonio
brothers so much because they were allegedly cattle rustlers that he admitted
that he was a principal in the killing of the two (2) deceased brothers of
deceased Romulo Sonio.”[17]
In its Appellant’s Brief, the defense suggested that prosecution witnesses
Mercedita Sonio and Gerardo
Sonio had a
motive for charging appellant
Federico Toribio with the murder of Romulo — revenge for Federico’s having denounced to the
NPA Romulo’s two (2) brothers as robbers and for the
death of those (2) brothers, presumably at the hands of the NPA. This appears a new and intriguing suggestion,
but there is nothing in the record to support it. The implicit suggestion is that the testimony
of both Mercedita and Gerardo that Federico Toribio had shot and killed Romulo
Sonio was a complete fabrication, designed to
“frame” an innocent man, and that Romulo
had in fact been killed by unknown persons.
Mercedita and Gerardo, however, held fast to
their statements and were not shaken by cross-examination.
The trial court rejected appellant’s defense of alibi. The general rule, applied by the trial court
in this case, is that the defense of alibi cannot prevail over positive and
credible identification of the accused.
It has been repeatedly held by this Court that:
“Alibi is not credible in the face of the direct and positive
testimony of the prosecution witness on how the assault on the victim was
perpetrated by the accused.
Contradictions in testimony of witness which refer to unimportant acts,
do not affect its veracity.”[18]
The fishpond where the appellant and his
son Reyson were allegedly working on the day of the
killing of Romulo Sonio
was, as noted earlier, about fifteen (15) kilometers away from the house of the
victim. The defense alleged that this
fifteen (15) kilometers trip was commonly made (at least by appellant and his
son) partly by motorized tricycle from Tibiao to Altavas and then by pump boat from Altavas
to Batang.
Federico Gulac, the alleged manager of the
fishpond, testified that appellant and his son had gone from Tibiao to the fishpond to work thereon 29 July 1985 (i.e.,
before the killing) and went back to Tibiao on 5
August 1985 (i.e., after the killing), creating the impression (though Gulac never explicitly said so) that they had stayed there
all throughout the intervening days.[19]
There was no showing, however, that it was physically impossible for appellant
to have left Batang for Tibiao
on the day of the killing, and then returned to Batang
on the same day.[20]
Examination of the testimony of Gulac reveals that he
was remarkably evasive and vague in his answers on cross-examination and as
well in his answers to the questions posed by the trial court, to the
exasperation of the court. Gulac claimed he had kept records showing who worked
when in the fishpond, but that he had surrendered the records to the
owners;[21]
the defense, however, made no effort to subpoena those records. In sum, his testimony was found inadequate by
the trial court, and we find no reason for departing from this finding of the
trial court.
In an attempt to discredit the testimony of Gerardo Sonio, the defense pointed to certain alleged
inconsistencies in Gerardo’s statements.
Appellant claims that Gerardo had three (3) different versions as to why
he was in his brother’s house at the time of the shooting of Romulo. Gerardo,
appellant contends, had told Police Investigator Salazar that he was there at
that time because he and Romeo Patricio, a friend, had been invited by Romulo to drink tuba with him. The second version, appellant claims, was
related by Gerardo to the Municipal Judge of Altavas,
i.e., that he and the other members of the family had been invited by his
brother Romulo to his house to partake of newly
harvested rice. The third version,
according to the appellant, was what Gerardo had recounted to the court during
the trial: that Gerardo was there in the
victim’s house to fetch their mother. We
note, however, that the matter of how and why Gerardo happened to be in the
house of the victim Romulo was not a fact in issue in
the trial. Any minor inconsistencies
that may have crept into Gerardo’s testimony in respect of such matter did not,
consequently, affect his credibility.
What had been definitely established by Gerardo and the other
prosecution witnesses was that Gerardo was in the victim’s house at the time of
the shooting; and that he saw the appellant shoot Gerardo.[22]
Besides, the alleged inconsistencies seem more apparent than real in this case.
Appellant also suggested that Mercedita’s
and Gerardo’s testimony that appellant and his co-accused had tarried at the
scene of the crime instead of immediately leaving after having shot down Romulo Sonio, was inherently
incredible. We do not think so. In the first place, the precise place of the
shooting was only about a hundred meters away from Romulo’s
and Mercedita’s house, a distance traversable in a
few minutes. Appellant’s failure to quit
the scene of the crime immediately after having shot Romulo
Sonio is plausibly explainable by a desire on the
part of appellant to make sure that the victim was mortally wounded.
Appellant also seeks to make capital of the fact that the police
report had stated that the deceased Romulo Sonio was killed by unidentified persons while Mercedita and Gerardo had pointed to appellant as the gunman
and killer. As noted earlier, the police
report was based upon information conveyed by Barangay Captain Pablito
Espino who had not personally investigated the
killing of Romulo.
Espino had simply relied upon information
conveyed by Barangay Councilman Blacquio
that the victim had been killed by unidentified men.[23]
Espino’s testimony is clearly an insufficient basis
for disregarding the clear and positive identification by Mercedita
and Gerardo Sonio of appellant as the killer of Romulo Sonio.
Finally, appellant argues that treachery was not present in the
instant case considering that the victim had become aware of the presence of
his attackers and had been able to shout for help. The Court is not persuaded by this
argument. Romulo
Sonio was clearly not in a position to defend himself
at the time of the attack: he was then
on top of a coconut tree. His assailant
was on the ground aiming and firing at him much as if he were a
sitting duck. There was, in other words,
here the employment of means or methods or manner of execution which insured
the attacker’s safety from any defensive or retaliatory act on the part of the
victim. Romulo
Sonio perched on top of the coconut tree was quite
helpless, and the trial court believed that such manner of execution was
deliberately or consciously chosen by appellant. Again, we have no basis for rejecting this
finding of the trial court: appellant
did not give Romulo a chance to descend from the
coconut tree but rather shot him down from the tree.
The location and position of the gunshot wound sustained by Romulo clearly showed that the victim had been attacked
while perched on top of the coconut tree.
The autopsy report of Dr. Rogelio G. Rivera stated that the point of
entrance of the bullets (or shotgun pellets) that had pierced the heart or lung
of the victim were in the “chest left anterior axillary
line level of nipple” and “chest left 6 ICS below nipple”. As pointed out by the Solicitor General in
his Brief:
“x x x. The nipple is normally found at the level of
the 6th thoraxic vertebra. If the person firing the gun was at the level
of the victim, the bullets would not have lodged at the 1st and 2nd thoraxic vertebrae.
In this case, the bullets were found lodged at the 1st and 2nd thoraxic vertebrae, while the points of entrance of the
bullets were either at the level of the nipple, or below the nipple. Necessarily, the trajectory of the bullets
could only have been upwards, leading to the necessary conclusion that the
victim was at a higher level than the gunman.
(Snells, Clinical Anatomy, 2nd ed., p.
2)”[24]
FOR ALL THE FOREGOING, the Decision of the trial court
dated 13 February 1989 is
hereby AFFIRMED, with the modification that appellant shall indemnify the heirs
of the late Romulo
Sonio in the
amount of P50,000.00.
SO ORDERED.
Fernan, C.J., (Chairman), Gutierrez,
Jr., Bidin, and
Davide, Jr., JJ.,
concur.
[1]
Rollo, pp. 5-6.
[2]
Id., pp. 25-26.
[3]
TSN, 24 September 1987, p.
5.
[4]
TSN, 2 May 1986, p. 6
[5]
Id., pp. 7-8; TSN, 13 October 1986, pp. 7-8; TSN, 24 September 1987, p. 6.
[6]
TSN, 13 October 1986, p.
8; TSN, 24 September 1987,
pp. 8-9.
[7]
Id., pp. 9-10; TSN, 24 September 1987, pp. 9-10.
[8]
TSN, 2 May 1986, p. 13.
[9]
TSN, 24 September 1987, p.
10.
[10]
Id., pp. 10-11.
[11]
TSN, 4 February 1988, pp.
5-6.
[12]
TSN, 2 May 1986, p. 25.
[13]
Original Record, p. 34.
[14]
TSN, 2 May 1986, pp. 10-11.
[15]
TSN, 24 September 1987, pp.
9-10.
[16]
People v. Sarol, 139 SCRA 125 (1985); People v.
Veloso, 148 SCRA 60 (1987); People v. Sarda, 172 SCRA 651
(1989).
[17]
Trial Court Decision, Rollo, p. 23.
[18]
People v. Casunde, 134 SCRA 197 (1985); People
v. Garcia, 141 SCRA 336 (1986); People v. Pacoda,
Jr., 142 SCRA 427 (1986); People v. Aboga, 147
SCRA 404 (1987); People v. Pecato, 151 SCRA 14
(1987); People v. Gahal, 170 SCRA 585 (1989);
People v. Madriaga IV, 171 SCRA 103 (1989).
[19]
TSN, 11 August 1988, pp.
3-6.
[20]
People v. Rose, 166 SCRA 110 (1988); People v. Tuando, 150 SCRA 8 (1987); People v. Lucas, G.R. No.
80102, 22 January 1990; People v. Solis, G.R. Nos. 78732-33, 14 February
1990.
[21]
TSN, 11 August 1988, p. 18.
[22]
TSN, 2 May 1986, pp. 5-11;
TSN, 7 July 1988, pp. 11-12.
[23]
TSN, 24 September 1987, p.
7.
[24]
Appellee’s Brief, p. 18