PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO LOZANO, ACCUSED-APPELLANT.

This is an appeal from the August 18, 1989 decision of the Regional
Trial Court, First Judicial Region, Branch 24, Cabugao, Ilocos Sur, in Criminal
Case No. 993-K, finding the accused Francisco Lozano and Ernesto Morales guilty
beyond reasonable doubt as co-principals in the commission of the crime of
murder, qualified by treachery and aggravated by nighttime which is not offset by any mitigating
circumstance, each is hereby sentenced to suffer the penalty of reclusion
perpetua, with all the accessory penalties provided for by law, to
indemnify, jointly and severally, the legal heirs of the late Ernesto Gazmen,
Sr., in the amount of P100,000.00 without subsidiary imprisonment in case of
insolvency, and to pay proportionate costs (Rollo, Decision, pp. 46-47).

The appellant was charged in an information filed by Actg. 2nd
Asst. Provincial Fiscal Ulpiano I. Campos of Vigan, Ilocos Sur on August 21,
1985, which reads:

“The undersigned Acting 2nd Assistant Provincial Fiscal
accuses Francisco Lozano, Ernesto Morales and Vivencio Somera of the crime of
Murder with multiple frustrated murder, committed as follows:

That on or about the 11th day of March, 1984, in the municipality
of Cabugao, province of Ilocos Sur, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, with treachery and evident
premeditation, and with intent to kill, did then and there willfully,
unlawfully and feloniously assault, attack and shoot with a gun Ernesto Gazmen,
Sr., Dr. Loreto Damian, Luis Sumibcay and Marcos Segui, thereby inflicting upon
Ernesto Gazmen, Sr., mortal gunshot wounds which necessarily produced his
instantaneous death, and simultaneously inflicting upon Dr. Loreto Damian, Luis
Sumibcay and Marcos Segui gunshot wounds on their bodies, thus performing all
the acts of execution which would have produced the crime of multiple murder as
a consequence thereof, but nevertheless did not produce it by reason of causes
independent of the will of the accused, that is, because of the timely and able
medical attendance rendered to said Dr. Loreto Damian, Luis Sumibcay and Marcos
Segui, which prevented their death.

“CONTRARY TO LAW” (Rollo, p. 10, Original Record, p. 1).

Upon arraignment, the accused Ernesto Morales, Vivencio Somera
and Francisco Lozano entered a plea of not guilty to the crime charged
(Original Record, pp. 49; 70).

The trial of the case ensued.

The prosecution presented the following witnesses: Ernesto Gazmen, Jr., Joseph Soller, Floro
Soller, Dr. Jaime Gorospe, Nestor Sabio and Alfredo Johnny Siruno.

Ernesto Gazmen, Jr., the eyewitness of the
prosecution and the son of the deceased Ernesto Gazmen, Sr. narrated that on
March 11, 1984 at 9:00 o’clock in the evening, he was at a cockpit to watch and
bet on the cock. He was at the west
side on a higher level and saw his father at the south of the ringside of the
arena. His distance from his father was
more or less five (5) meters away. While the cockfighting was going on at past 8:00 o’clock in the evening,
his father, Ernesto Gazmen, Sr., was shot to death by Francisco Lozano. He claimed that he actually saw Lozano shoot
his father and the shots were successive. He also saw that Francisco Lozano had companions at that time, they were
Ernesto Morales and Vivencio Somera. The two were behind Lozano. Lozano was a meter away from his father when he poked his gun at the
latter (Victim’s back was towards Lozano) while his companions Morales and
Somera were also holding their guns aiming their guns at his late father. He admitted that he did not notice if the
two accused, Morales and Somera, fired their guns at his father, who was
standing when he was successively fired upon by Lozano and who slumped when he
was hit. When he saw Lozano fire his
gun at his father, he shouted and shouted that Francisco Lozano shot his father
but he was not able to do anything because he was afraid, as the killers were
armed and he was unarmed. After his
father slumped, the people, including the three killers, ran away. When he went to see his father, he just
peered at him and saw that he was already dead. After seeing the condition of his father, he called for a
policeman and the one who came to assist him was Angelino Savella. The body of his father was brought to the
emergency hospital by his father’s workers. As he was advised not to accompany the body, he went home. He saw the cadaver of his father once when
he went to the emergency hospital and the following morning when the body was
brought home.

In addition, he also testified that he knew very well the three
persons who shot his father: Francisco
Lozano who was a P.C. Sergeant, married to a native of Cabugao; and Ernesto
Morales and Vivencio Somera, who were both policemen. He identified them in court by pointing to them.

He also clarified that the gun poked at the head of his father
was a .45 caliber. He knew it because
he used to see such kind of gun and its slug. All along, Morales and Somera had already drawn their guns but he could
not determine what kind of guns the other two accused had.

He further testified that at the time he saw Lozano, he was
wearing a blue denim jacket, but he could not remember the attire of Morales
and Somera. He was able to identify the
three accused because the place was properly lighted and the lights were
fluorescent lamps, placed at the sides of the cockpit.

In viewing the on going cockfighting, his companion was
“Popoy” whose real name is Joseph Soller. He also saw Nestor Sabio in the company of his elder brother
Danny. So was Floro Soller who was inside
the cockpit, releasing the cock, and Johnny Siruno who was above his father.

He mentioned that aside from his father there were also others
who were hit by a stray bullet, they were: Marcos Segui, Luis Sumibcay and Dr. Loreto Damian (Hearing of January
29, 1986, TSN, pp. 2-20).

Despite gruelling cross examination, witness consistently
maintained his testimony and clarified his statements (Hearing of April 28, 1986, TSN, pp.
34-53). But more importantly, his
testimony was corroborated by the following witnesses: (a) Joseph Soller, his companion at the
cockpit when the incident happened (Hearing of July 28, 1986, TSN, pp. 81-86);
(b) Floro Soller, the handler of one of the fighting cocks who despite his
preoccupation with the fighting cocks, managed to monitor the movements of Francisco Lozano and Ernesto Morales
who approached the deceased before he heard the gun reports that killed Gazmen,
Sr. He explained that his attention was
arrested by the unusual movement of the two accused and of the prevailing tense
atmosphere in the cockpit (Hearing of October 8, 1986, TSN, pp. 117-126); (c)
Nestor Sabio, an auto mechanic who happened to be at the cockpit at the time of
the incident to eat “sinanglan” and later he joined his companions to
watch the cockfight when he heard gunfire and saw Francisco Lozano firing a gun
at Gazmen, Sr. He also identified the
gun used, a pistol caliber .45. At the
specific, time, he was at the gallery with Danilo Gazmen. He did not testify immediately because he
was afraid. He testified because the
military went to his house (Hearing of November 18, 1986, TSN, pp. 152-160);
(d) Alfredo Johnny Siruno, another resident of Barangay Baclig, Cabugao, Ilocos
Sur, who went to the cockpit to place a bet and who also witnessed the incident
as described by Gazmen, Jr. (Hearing of January 6, 1987, TSN, pp. 184­-188);
and finally (e) Dr. Jaime Gorospe, the municipal health officer of Cabugao,
Ilocos Sur, who performed the autopsy on the cadaver. He testified that the cause of death was internal hemorrhage
caused by gun shot wounds and that all the entrance wounds were inflicted at
the back of the deceased, thereby confirming the testimonies of the
eyewitnesses that the firing came from behind the victim (Hearing of November
17, 1986, TSN, pp. 140-145).

Significantly, all  the
witnesses of the prosecution except Ernesto Gazmen, Jr. did not see Vivencio
Somera at the scene of the crime at or about the time the late Ernesto Gazmen,
Sr. was shot. Hence, after the
prosecution had rested its case, accused Vivencio Somera filed a motion to
dismiss by way of a demurer to the evidence (Original Record, pp. 215-217)
which was granted by the Court on September 23, 1987 for lack of a prima
facie case against the accused (Original Record, p. 219).

Accused Ernesto Morales was deemed to have waived his right to
present evidence for and in his defense by evading the processes of the court
since August 10, 1988 up to the present, when he was required to put up another
bail bond but went into hiding instead. Then, on February 5, 1989, Morales was the victim in a shooting incident
that happened in the town proper of Cabugao and was hospitalized at the
Gabriela Silang Hospital, Tamag, Vigan, Ilocos Sur, but escaped while being
transferred to the Provincial Jail at the capital town of Vigan. Since then up to the present, accused
Ernesto Morales has remained at-large, leaving the Citizens Legal Assistance
Office, helpless in plotting his defense. Nevertheless, trial in absentia ensued with respect
to accused Morales, as authorized by the 1973 and 1987 Constitutions (Rollo,
Judgment, pp. 40-41).

The theory of the defense consists of denial and alibi. It presented the following witnesses who
testified as follows:

Francisco Lozano, one of the accused, testified
that on March 11, 1984, he fetched Arthur Sonido from the latter’s house. They then rode on a jeep of which he was the
driver and proceeded to the cockpit. He
and his companions, namely: Arthur
Sonido, Eduardo Corpuz, Jun Flores and Vivencio Gazmen, then had a drinking
spree outside the cockpit. They were
later joined by Dodong, a former barangay captain of Tepping, Sinait, Ilocos
Sur, now deceased. When they were
already about to go home he heard gun reports coming from the southwest. He was at the time on the wheel of the jeep
starting the engine, while Arthur Sonido was behind the jeep making signals for
him to move the jeep backward. Inside
the jeep were Arthur Sonido, Eduardo Corpuz, Vivencio Gazmen and Jun Flores. As they were informed by Teresita Sonido,
wife of Arthur Sonido, that there were visitors waiting for Arthur, they
proceeded home (Hearing of April 5, 1989, TSN, pp. 319-328).

His testimony was corroborated by the other witnesses who were
supposed to be with him in the jeep, to wit: (a) Eduardo Corpuz, the embalmer (Hearing of March 14, 1988, TSN, pp.
215-223); (b) Floro Flores (Hearing of May 26, 1988, TSN, pp. 247-252); (c)
Bonifacio Sonido (Hearing of May 27, 1988, TSN, pp. 262-266); (d) Arthur Sonido
(Hearing of September 13, 1998, TSN, pp. 278-287); and (e) Vivencio Gazmen
(Hearing of November 14, 1988, TSN, pp. 296-302) all of whom declared that they
boarded a jeep driven by Francisco Lozano and denied having seen Ernesto
Morales. They tried to establish that
Francisco Lozano was not inside the cockpit where the incident happened, but
outside, while Ernesto Morales, his co-accused, was not seen in the vicinity.

Constancia Franco Salonga, a supervising
forensic chemist of the National Bureau of Investigation, testified that she
conducted a paraffin examination on both Lozano and Morales. Her findings revealed that the left and
right hands of both accused showed negative results for the presence of
nitrates. She, however, explained that
the result of a paraffin test does not constitute conclusive evidence as to
whether or not a person has fired a gun (Hearing of February 16, 1989, TSN, pp.
307-317).

On rebuttal the prosecution presented Mrs. Linda Somera Gazmen,
who testified that she knew Francisco Lozano because he was residing in Barangay
Quezon and married to a barangaymate of her. On March 11, 1984, that was Sunday, Lozano came to the house of her
aunt, Mrs. Nona Artista, where they were playing cards and the time was about
between 6:00 to 6:30 in the evening, he played or “nangbalasa” the
cards of one of the players.

She also testified that accused Ernesto Morales was also in the
house of her aunt. Morales went there
after lunch alone and played cards up to before twilight. After they had played cards Morales, Lozano
and others left the place and she could not tell where they had gone. (Hearing of June 20, 1989, TSN, pp.
354-357).

On sur – rebuttal, the defense recalled accused Lozano who denied
the testimony put in by Linda Gazmen. He also said that Linda Gazmen merely wanted to put him down in this
case, because of his closeness and friendship with Ernesto Morales (Hearing of
July 24, 1989, TSN, p. 347).

On August 18, 1989, the trial court rendered judgment, the
decretal portion of which reads as follows:

“WHEREFORE, finding both accused, Francisco Lozano and Ernesto
Morales, GUILTY beyond reasonable doubt as co-principals in the commission of
the crime of murder, qualified by treachery and aggravated by nighttime which
is not offset by any mitigating circumstance, each is hereby sentenced to
suffer the penalty of reclusion perpetua, with all the accessory
penalties provided for by law, to indemnify, jointly and severally, the legal
heirs of the late Ernesto Gazmen, Sr., in the amount of P100,000.00 without subsidiary
imprisonment in case of insolvency, and to pay proportionate costs.

“The multiple frustrated murder component of the complex crime
charged, is hereby DISMISSED, for lack of evidence.

“SO ORDERED.” (Rollo, Judgment, pp. 46-­47).

Hence, the instant appeal.

Appellant raised the following assignments of error:

I

THE TRIAL COURT ERRED IN ACQUIRING JURISDICTION OF THE CASE AT BAR
FOR MURDER AND FRUSTRATED MURDER ALLEGEDLY COMMITTED BY ACCUSED-APPELLANT
FRANCISCO LOZANO WHILE HE WAS AN ACTIVE AND REGULAR MEMBER OF THE PHILIPPINE
CONSTABULARY AND HIS CO-ACCUSED ERNESTO MORALES AND VIVENCIO SOMERA OF THE
INTEGRATED NATIONAL POLICE.

II

IN THE ALTERNATIVE, THE TRIAL COURT ERRED IN FINDING
ACCUSED-APPELLANT FRANCISCO LOZANO GUILTY BEYOND REASONABLE DOUBT OF MURDER, AS
CHARGED.

III

THE TRIAL COURT ERRED IN FINDING THE KILLING OF THE DECEASED WAS
QUALIFIED BY TREACHERY.

IV

THE LOWER COURT ERRED IN CONSIDERING NIGHTTIME AN AGGRAVATING
CIRCUMSTANCE.

The appeal has no merit.

I

Accused-appellant Lozano’s allegation in his first assigned error
that the trial court did not acquire jurisdiction in trying his case and that
the decision rendered by him should be declared null and void does not merit
any consideration.

The record shows that the issue of jurisdiction in the trial
court was not raised by the accused-appellant Lozano, so much so that if the
issue be raised at this point in time it would be useless and futile because
the question of jurisdiction over the person which was not raised in the trial
court cannot be raised on appeal (Vda. de Alberto v. Court of Appeals, 173 SCRA
436 [1989]).

Besides, a party is estopped from assailing the jurisdiction of a
court after voluntarily submitting himself to its jurisdiction (Tejones v.
Gironella, 159 SCRA 100 [1988]). Accused-appellant
Lozano’s appearance in the arraignment and pleading not guilty to the crime
charged, is a sign that he voluntarily submitted himself to the jurisdiction of
the court, so that jurisdiction has been acquired by the court over his person
and continues until the termination of his case.

It is also the contention of the accused-appellant Lozano that as
a military man (member of the Philippine Constabulary) he should be tried by
the military court and not by the civil court.

Under General Order No. 59 Military Tribunals created under
General Order No. 8 exercise exclusive jurisdiction over all offenses committed
by military personnel of the Armed Forces of the Philippines while in the
performance of their official duties. The only requisite, however, for offenses committed by military
personnel to be covered by and fall under the ambit of the aforesaid Order No.
59 is that the “act or omission is
committed in the actual performance of official duties” (Dela Cruz v. Moya, 160 SCRA 838 [1988])
(underscoring supplied).

In the case at bar, there is no evidence whatsoever, that the
appellant committed the offense in the performance of his official duties.

It is significant to note that appellant was immediately
discharged from the military service after he committed the crime, which
resulted in the case being filed in the civil court. As correctly observed by the trial court in its decision, this
case was initially filed with the military authorities at Camp Dangwa, La
Trinidad, Benguet, Lozano being then a P.C. sergeant and Morales and Somera,
members of the Integrated National Police, but the case was transferred to the
civil court for trial and disposition, following the discharge of the accused
from the military and police service (Rollo, p. 46).

II

The last three assigned errors boil down to the issue of
credibility of witnesses.

The prosecution witnesses positively identified accused-appellant
Lozano as one of the assailants of the late Ernesto Gazmen, Sr.. There was no mistake in identifying the
accused-appellant Lozano because the place where the incident happened was very
well lighted/illuminated by fluorescent bulbs.

On these testimonies of the witnesses, their positive
identification and categorical declarations that accused-appellant Lozano was
one of the assailants, the prosecution was able to prove the guilt of the
accused. There being no evidence to
show that the witnesses for the prosecution were actuated by improper motive,
their identification of the accused as the assailant should be given full faith
and credit. (People v. Somera, 173 SCRA
684 [1989]).

On the other hand, appellant Lozano merely relies on his defense
of alibi which he was not able to substantiate by more convincing and credible
evidence. Alibi is a weak defense which
cannot prevail over the positive identification of the accused by the
prosecution eye-witnesses (People v. Almenario, 172 SCRA 268 [1989]). For alibi to prosper, the requisites of time
and place must be strictly met (People v. Abaya, 170 SCRA 691 [1989]), it must
be shown that it was physically impossible for the accused to have been at the
scene of the crime at the time it was committed (People v. Salcedo, 172 SCRA 78
[1989]; People v. Catubig, 195 SCRA 505 [1991]) or it must be established by
clear and convincing evidence that the accused was at some other place and for
such a period of time as to negate his presence at the time when and where the
crime was committed (People v. Solis, 195 SCRA 404 [1991]). Even under the theory of the defense
appellant was just outside the cockpit at the time the incident happened. Hence, there appears to be no cogent reason
to disturb the findings of fact and the conclusions of the trial court.

PREMISES CONSIDERED, the appealed decision of the trial court
dated August 11, 1989 is hereby AFFIRMED, with the modification that the indemnity
to the heir/heirs of the victim is reduced to P50,000.00 in line with existing
jurisprudence (People v. Alitao, 194 SCRA 120 [1991]; People v. Gamboa, 194
SCRA 372 [1991]).

SO ORDERED.

Melencio-Herrera, (Chairman), Padilla, Regalado, and Nocon, JJ.,
concur.