THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VICTOR JAPSAY Y ESCALADA, ACCUSED-APPELLANT.

People versus Japsay

The Case

This is People versus Japsay, a criminal appeal from a conviction for murder. The accused, Victor Japsay, admitted that he shot Wilmar Vivas inside a snack bar in Bacolod City, but claimed the shooting was purely accidental. The case matters for two reasons. First, it is a clean illustration of how the Supreme Court treats the defense of accident and the credibility of eyewitnesses. Second, it is a standard authority on treachery as a qualifying circumstance, and on the rule that there is no standard form of human behavior when a person is confronted with a shocking incident.

Procedural History

The accused was charged with murder before the Regional Trial Court, Branch 44, of Negros Occidental in Bacolod City. After trial, the trial court convicted him of murder, sentenced him to reclusion perpetua, and ordered him to indemnify the heirs of the victim thirty thousand pesos for his death, one hundred fifty thousand pesos for loss of earning capacity, and ten thousand pesos as moral damages. The accused appealed directly to the Supreme Court, which decided the case in September 1992.

Facts

In the early evening of October 25, 1988, Wilmar Vivas arrived at the J and S Tsibugan and Snack Bar at the corner of San Sebastian and Gatuslao Streets in Bacolod City. He ordered a bottle of beer and stayed at one table with Rosemarie Talde, a waitress. Because he was curious about the place, Rosemarie accompanied him to the second floor, where there was a sing along. Around nine thirty in the evening, she left him briefly to attend to other customers.

On her way back, Rosemarie saw the appellant pointing a gun at Wilmar and heard him say, "Stand up there, I will shoot you, you will not stand up?" Wilmar did not react. Rosemarie passed by the appellant, held Wilmar on his right shoulder, and tried to convince him to go downstairs. As Wilmar stood up, she looked at the appellant, who was still pointing his gun. As they were about to step down the stairs, she heard a shot and saw the explosion coming from the appellant's gun. Wilmar uttered "ah" and fell. He was brought to the hospital but was pronounced dead on arrival. The autopsy found the cause of death to be shock and hemorrhage due to a gunshot wound. The police recovered the appellant's clutch bag with five live bullets and an empty shell of a thirty eight caliber gun at the scene.

The appellant admitted shooting Wilmar but claimed it was accidental. He testified that as a sales representative of Nestle Company he was exposed to insurgents and had been given a firearm by the Philippine Constabulary. That evening, while eating and drinking with his companion Larry Pura, he remembered that he had left his clutch bag containing his collections in the car. He asked Larry to get it. Larry noticed the gun and lifted it from the bag. The appellant impulsively grabbed the gun from Larry, and it suddenly exploded. He did not know that Wilmar was hit. He and Larry left because the other customers scampered away, and before going home he surrendered the gun to his lawyer.

Issues

• Whether or not the testimony of eyewitness Rosemarie Talde is credible, despite the appellant's claim that it is unnatural for her to risk her life for a new acquaintance and incredible that the victim remained passive while held at gunpoint.
• Whether or not the defense of accident can prevail over the prosecution's evidence.
• Whether or not treachery qualified the killing to murder.
• Whether or not the amount of indemnity for death should be increased.

Applicable Provisions

Article 248 of the Revised Penal Code, under which the appellant was convicted, provides:

Article 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.

Treachery is the qualifying circumstance the Court found present, and it is what raised the killing from homicide to murder.

Ruling

On the first issue, the Court held that there is no standard form of behavior when one is confronted with a shocking incident. It found it difficult to ascertain the degree of friendship between Rosemarie and Wilmar that would allow it to predict exactly how she would react. As for Wilmar's passivity, Rosemarie sufficiently explained it: he was sitting with his hands under his chin, kept quiet, and did not move, because, as she put it, "Maybe he did not mind because he did not expect that he will be shot." The Court also found Rosemarie to be a disinterested witness, with no motive shown to impel her to perjure herself.

On the second issue, the Court held that the defense of accident miserably fails. The trial court found that the appellant committed the crime in the manner testified to by Rosemarie, and the Supreme Court deferred to that finding.

On the third issue, the Court held that treachery qualified the crime to murder. The unarmed victim did not expect that he would really be killed, for he must have dismissed the appellant's warning as coming from a drunken man with whom he had no quarrel. The appellant gunned him down at close range while he was about to step down the stairs, following Rosemarie's bid to avoid trouble. At that particular time, the victim was not in a position to defend himself, as he was totally unprepared for the deadly attack.

On the fourth issue, the Court increased the indemnity for death to fifty thousand pesos, conformably with recent jurisprudence.

Doctrine

First, there is no standard form of behavior when one is confronted with a shocking incident. A witness's reaction to danger, and a victim's passivity in the face of a threat, cannot be measured against a fixed template of expected conduct. Second, the defense of accident cannot prevail where the trial court's factual findings, supported by a credible eyewitness, show a deliberate act. Third, treachery under Article 248 of the Revised Penal Code qualifies a killing to murder where the offender employs means, methods, or forms in the execution of the crime that tend directly and specially to insure its execution without risk to himself arising from the defense the victim might make. The test is whether the victim was in a position to defend himself, and an unarmed man shot at close range while about to descend a stairway was not. Fourth, a disinterested eyewitness with no shown motive to testify falsely is entitled to full credence.

Disposition

The Supreme Court affirmed the conviction of Victor Japsay for murder, with the indemnity for death increased to fifty thousand pesos.

Remember This

Memorize the line: there is no standard form of behavior when one is confronted with a shocking incident. Examiners use this case to test the defense of accident and the qualifying circumstance of treachery, especially where the victim was unarmed and taken by surprise at close range.