FIRST DIVISION
[G.R. No. 252157. September 14, 2021.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.KIM MARVIN PEREZ y POLICION @ "KIM", accused-appellant.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedSeptember 14, 2021which reads as follows: HTcADC
"G.R. No. 252157 —PEOPLE OF THE PHILIPPINES, plaintiff-appellee, versus KIM MARVIN PEREZ y POLICION @ "KIM", accused-appellant.
After a careful review of the records of the case and the issues submitted by the parties, the Court affirms the Decision 1 dated November 12, 2019 of the Court of Appeals (CA), Special Twelfth Division, in CA-G.R. CR-HC No. 12353. The facts, as borne out by the records, sufficiently support the conclusion that accused-appellant KIM MARVIN PEREZ y POLICION @ "KIM" (Kim) is indeed guilty of the crimes of Slight Physical Injuries and Murder. The issues and matters raised before the Court, the same ones as those raised in the CA, there being no supplemental briefs filed, were sufficiently addressed and correctly ruled upon by the CA.
It is well-settled that in the absence of facts or circumstances of weight and substance that would affect the result of the case, appellate courts will not overturn the factual findings of the trial court. 2 Here, after examining the records of this case, the Court finds no cogent reason to vacate the Regional Trial Court's (RTC) appreciation of the evidence, which was affirmed with modification by the CA.
Kim argues that the CA erred in convicting him of Murder and Slight Physical Injuries based on the following grounds: (1) there are inconsistencies in the testimony of Moriel Santos (Moriel), which diminish his credibility as a witness, e.g., inconsistencies on whether Moriel saw Kim fire the first gunshot, the time when Moriel's companions ran away, and at what order of gunshot Jomar Bugnon (Jomar) was hit; (2) the prosecution was not able to prove the identity of Kim as the assailant; and (3) treachery was not duly proven. 3
However, these arguments are clearly without merit.
First, Moriel, one of the eyewitnesses to the crime, and also a victim himself, positively and unequivocally identified Kim as Jomar's assailant. Moriel was candid, unambiguous, and categorical in declaring that while they were having a drinking session, he saw Kim fire at them inflicting fatal wounds on Jomar. 4 Moriel was likewise shot by Kim on his leg. 5
Although Kim claims that the testimony of Moriel cannot be given credence because it allegedly suffered from inconsistencies, the inconsistencies cited by Kim refer to minor details. It is settled that so long as the witnesses' testimonies agree on substantial matters, the inconsequential inconsistencies and contradictions dilute neither the witnesses' credibility nor the verity of the testimonies. 6 In addition, John Neil Carreon and John Axel Muerong, who were also present at the drinking spree, supported Moriel's testimony and identified Kim as the assailant.
In this regard, to establish Murder, the following elements must be proven: (1) that a person was killed; (2) that the accused killed him; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) the killing is not parricide or infanticide. 7
It bears emphasis that the inconsistencies pointed out by Kim do not refer to any of the aforementioned essential elements of the crime of Murder. Instead, Kim focused on minute details which are irrelevant to the crime committed. What is of utmost importance is that Moriel was able to clearly and positively identify Kim as the assailant and was able to testify on the essential elements of the crime charged.
Second, the CA was likewise correct in ruling that the crime committed was Murder because the killing was attended by the qualifying circumstance of treachery. For treachery to be appreciated, the following elements must be proven by the prosecution: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the means of execution was deliberately or consciously adopted. 8 In the instant case, Jomar received two fatal gunshot wounds on his back. 9 Moriel further testified that Kim continued to shoot Jomar even though the latter was already hit once and could no longer get up to run away. 10 Kim claims that since the other people in the area had the opportunity to run away, treachery could no longer be considered. However, in treachery, "[w]hat is decisive is that the execution of the attack, without the slightest provocation from an unarmed victim, made it impossible for the victim to defend himself or to retaliate." 11 The circumstances of the incident show that although the other people present during the drinking spree were able to run away, Jomar, the victim, was not able to run away or defend himself from Kim. Furthermore, the means of execution was deliberately adopted by Kim to ensure the death of Jomar. Even when Jomar already fell down on the ground, Kim still continued to shoot the former. Thus, both elements of treachery were present.
Lastly, the CA was correct in affirming the conviction of Kim for committing the crime of Slight Physical Injuries against Moriel. Although the Information charged Kim with Frustrated Murder, the RTC was correct in finding Kim guilty of Slight Physical Injuries, in accordance with variance doctrine under Section 5, Rule 120 of the Revised Rules of Criminal Procedure:
SEC. 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (5a)
In the instant case, as correctly ruled by the RTC, Kim cannot be convicted of Frustrated or Attempted Murder. The essential element in Frustrated or Attempted Murder is the intent to kill the victim immediately before or simultaneously with the infliction of injuries. 12 The following factors are considered in determining the presence of intent to kill, namely: (1) the means used by the malefactors; (2) the nature, location, and number of wounds sustained by the victim; (3) the conduct of the malefactors before, during, or immediately after the killing of the victim; and (4) the circumstances under which the crime was committed and the motives of the accused. 13 The intent to kill must be proved in a clear and evident manner to exclude every possible doubt as to homicidal (or murderous) intent of the aggressor. The onus probandi lies not on accused-appellant, but on the prosecution. The inference that the intent to kill existed should not be drawn in the absence of circumstances sufficient to prove this fact beyond reasonable doubt. When such intent is lacking but wounds were inflicted, the crime is not frustrated murder, but physical injuries only. 14 Here, there was no showing that Kim aimed his gun at Moriel even when Kim was already near the former. 15 In fact, Moriel testified that Kim hit him only on his leg, even if Kim had opportunity to fire another shot at him. 16 Clearly, intent to kill was absent. Thus, in accordance with Article 266 of the Revised Penal Code, 17 since Moriel was hospitalized for five (5) days and required an operation for the gunshot wound on his left leg and there was no evidence that Kim intended to kill Moriel, 18 the CA correctly ruled that Kim is guilty only of Slight Physical Injuries.
WHEREFORE, premises considered, the appeal 19 is DISMISSED for lack of merit. The Court hereby ADOPTS the findings of fact and conclusions of law in the Decision dated November 12, 2019 of the Court of Appeals, Special Twelfth Division, in CA-G.R. CR-HC No. 12353. The Decision finding accused-appellant KIM MARVIN PEREZ y POLICION @ "KIM" guilty beyond reasonable doubt for the crimes of Slight Physical Injuries and Murder is AFFIRMED.
In Criminal Case No. C-93031, this Court finds accused-appellant Kim Marvin Perez y Policion @ "Kim" guilty beyond reasonable doubt for the crime of Slight Physical Injuries and sentences him to suffer the penalty of imprisonment of twelve (12) days of arresto menor.
By way of civil liability, the Court orders accused-appellant Kim Marvin Perez Policion @ "Kim" to pay private complainant Moriel Santos, the following:
1. Thirty Six Thousand Eight Hundred Eighty Three Pesos (P36,883.00) as actual damages considering that he incurred expenses for medical treatment.
2. Five Thousand Pesos (P5,000.00) as and by way of moral damages for the suffering, mental anguish, frights and serious anxiety suffered by him as a result of the injuries sustained by him.
In Criminal Case No. C-93032, this Court finds accused-appellant Kim Marvin Perez y Policion @ "Kim" guilty beyond reasonable doubt for the crime of Murder and is hereby sentenced to suffer the penalty of Reclusion Perpetua.
Accordingly, accused-appellant Kim Marvin Perez y Policion @ "Kim" is liable to pay the heirs of Jomar Bugnon by way of civil liability, the amounts of (a) P75,000.00 civil indemnity; (b) P75,000.00 as moral damages; (c) P75,000.00 as exemplary damages and (d) P80,598.00 as actual damages.
All monetary awards shall earn interest at the legal rate of six percent (6%) per annum from the date of finality of this Resolution until fully paid.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 3-20. Penned by Associate Justice Ma. Luisa C. Quijano-Padilla with Associate Justices Edwin D. Sorongon and Ruben Reynaldo G. Roxas, concurring.
2.People v. Gerola, G.R. No. 217973, July 19, 2017, 831 SCRA 469, 478.
3.Rollo, p. 10.
4. See id.
5.Id.
6.People v. Agomo-o, G.R. No. 131829, June 23, 2000, 334 SCRA 279, 300.
7.People v. Dela Cruz, G.R. No. 188353, February 16, 2010, 612 SCRA 738, 746.
8.People v. Lagman, G.R. No. 197807, April 16, 2012, 669 SCRA 512, 524.
9. CA rollo, p. 101.
10.Id.
11.People v. Lacaden, G.R. No. 187682, November 25, 2009, 605 SCRA 784, 802.
12. CA rollo, p. 75.
13.De Guzman, Jr. v. People, G.R. No. 178512, November 26, 2014, 742 SCRA 501, 508.
14.People v. Villacorta, G.R. No. 186412, September 7, 2011, 657 SCRA 270, 284-285.
15.Rollo, p. 17.
16.Id.
17.ART. 266.Slight physical injuries and maltreatment. — The crime of slight physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one (1) to nine (9) days, or shall require medical attendance during the same period. (Emphasis supplied; italics in the original)
18.Rollo, pp. 17-18.
19.Id. at 21-22.