FIRST DIVISION

[G.R. No. 230867. March 4, 2019.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.GENEBIE RAGAY, accused-appellant.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedMarch 4, 2019which reads as follows:

"G.R. No. 230867 (People of the Philippines v. Genebie Ragay)

This is an appeal by certiorari under Rule 45 of the 1997 Rules of Court to reverse and set aside July 29, 2016 Decision 1 and February 10, 2017 Resolution 2 of the Court of Appeals (CA), in CA-G.R. CR-HC No. 01916, which affirmed with modification the June 23, 2014 Judgment 3 of the Regional Trial Court of Dumaguete City, Branch 34 (RTC), finding Genebie Ragay (accused-appellant) guilty beyond reasonable doubt of the crime of murder.

The Antecedents

On March 15, 2006, accused-appellant was charged with the crime of murder in an Information dated February 24, 2006, 4viz.:

The undersigned Assistant Provincial Prosecutor accuses GENEBIE RAGAY of the crime of MURDER, committed as follows:

That on or about December 6, 2005 in Siaton, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery, did, then and there, willfully, unlawfully and feloniously, shoot one Roderick Jandog, with the use of a handgun which accused was then armed and provided, thereby inflicting upon said victim the following injuries, to wit:

1. Entrance wound scapular area (R) and

2. Exit wound anterior chest (L)

which wounds resulted to his death immediately thereafter, to the damage and prejudice of the heirs of said victim.

Contrary to law. 5

On May 31, 2006, accused-appellant was arraigned. He pleaded "not guilty." 6

Version of the Prosecution

The evidence for the prosecution rested mainly on the testimonies of Daryl Antonio (Antonio), Dr. Edgar Y. Retuya (Dr. Retuya), and Dorotea Jandog (Dorotea), as well as the following documentary exhibits: Out Patient Record Card of Roderick A. Jandog (Jandog)7 and the Certificate of Death of Jandog. 8

Antonio, a nineteen (19)-year-old student, testified that he and Jandog were close friends. 9 On December 6, 2005, at about 2:30 in the morning, Antonio, Jandog and Jandog's live-in partner, Messy Solis (Solis), were in Siaton, Negros Oriental to attend the town fiesta. A disco was being held at the gym. However, only Jandog and Solis were allowed entry because Antonio was wearing short pants. Jandog then decided to go to his grandmother's house to get long pants for Antonio to wear. 10

On the way to his grandmother's house, they met accused-appellant. He asked if he could borrow some long pants for Antonio to use in the dance. Accused-appellant refused to lend him some pants and instead offered marijuana to Jandog. Jandog refused to take the marijuana. Accused-appellant got angry and said, "Ayaw pagsalig sa imong lawas nga dako kay madutlan rana ug bala." (Do not rely much on your big body because it can be penetrated by a bullet). 11

They left accused-appellant and proceeded to the house of Yuping Gadingan, Jandog's grandmother, where Jandog lent some long pants to Antonio. Jandog and Antonio then returned to the gym, but left Solis behind due to the late hour. 12

Inside the gym, they danced to a few songs. Later, Jandog felt the call of nature and asked Antonio to accompany him to the place where he could urinate. Jandog urinated on the wall beside the left side of the stage. While he was urinating, accused-appellant, who emerged from the dancing area, approached Jandog and suddenly pulled out his gun and shot Jandog. Antonio was at the back of Jandog, about three (3) meters away, when the shooting occurred. He saw the gun used by accused-appellant and it appeared to him to be a .45-caliber pistol. 13

Antonio panicked because of the shooting. He fled back to the dancing area. Shortly, he went back to Jandog who was lying in a pool of his own blood. Antonio asked for help from the people dancing in the gym. Jandog was loaded in a multi-cab and brought to Lamberto Macias Memorial Hospital. Jandog was pronounced dead on arrival by Dr. Retuya. 14

Dr. Retuya testified that on December 6, 2005, at dawn, Jandog was referred to him. He examined Jandog, took his blood pressure and heart beat, but noticed that Jandog was no longer alive. He then pronounced him dead on arrival. He noted that Jandog sustained a gunshot wound on the right scapular area, which means on the right side of his back, with an exit wound on his anterior chest. After the examination, Jandog was packed and sent to the morgue. He did not conduct an autopsy because he felt there was no need for the same and the hospital had no such facility. 15

Dorotea, Jandog's mother, declared that she incurred expenses for the wake and burial of her son. She presented documentary evidence in support of the same. 16

Version of the Defense

The evidence of the defense mainly rested on the testimonies of accused-appellant, Pel Namutcatcat 17(Namutcatcat), Israel Dizon (Dizon), Celso Futalan (Futalan), and Eugenio Elmido (Elmido).

Accused-appellant claimed that at about 9:00 in the evening of December 5, 2005, he went to the gym to check if there were already a lot of people. The gym was just across the street where his house was located. When he saw that there were already some people in the gym, he went home. On the way, he met his neighbor Harold Kinkito (Kinkito) and Jandog. He invited them to join their group. On cross-examination, he stated that was the only time he met and talked with Jandog that night. However, when confronted with his counter-affidavit where he stated that Jandog came back and was already drunk, he said that he met Jandog once but not Kinkito. 18

At around 2:00 in the morning of December 6, 2005, accused-appellant received a text message from a certain "Maning" inviting him to go to the gym. He arrived at the gym around 3:00 in the morning along with his friends Papa Dan, Julius Aliabo, Israel Dizon and others. At this time, the gym no longer charged an entrance fee. 19

Accused-appellant, together with his companions, stayed on the right side of the dance floor facing the stage. Namutcatcat was on his left side while Papa Dan was on his right. They heard an explosion from the other side of the stage, opposite where they sat. Due to the loud music, no one inside the gym reacted to the explosion thinking it was just one of the firecrackers. A few minutes later, a policeman approached them and told them that a person was killed. They were advised to go home. 20

His friends, Namutcatcat and Israel Dizon, both testified to the effect that he was with them the entire time inside the gym, especially when they heard the explosion. 21

Futalan, a former municipal watchman of the Municipality of Siaton, Negros Oriental, testified that on December 6, 2005, at around 3:00 to 4:00 in the morning, he was guarding the gym where a dance was being held. He was guarding the back of the stage where four storage rooms were located containing materials to be used in the municipality. He was positioned at a table near the wall behind the stage. 22

While he was guarding the area, he saw the assailant pass him by and shoot Jandog. Jandog was, at the time, urinating on the right side of the stage wall. Futalan stated that he was about two and a half (2 1/2) meters away from the person who shot Jandog. He did not try stopping the assailant because he only had a "batuta" (nightstick) while the assailant had a gun. He said the assailant had previously passed by him in the evening. The first time he passed by, he went out through the front. The second time was when he shot Jandog. 23

Futalan claimed that the distance of the place where the assailant shot Jandog and where he was sitting was about four (4) meters. The area was well-lighted and he could see the face of the assailant very well and it was not accused-appellant. He described the assailant as tall, dark with spiky straight hair, and wearing a blue t-shirt. He said he also saw accused-appellant that night in the area he was guarding but he was not the one who shot Jandog. 24

Futalan disclosed that he reported the incident only to police officer Elmido, who was the team leader at the time. He did not report it to the police station of Siaton. Two days later, he again reported to the police officer who came to see him that he saw the face of the assailant. He claimed that the assailant was from Siaton and that he would see him play basketball while he was still a municipal watchman. 25

Elmido stated that Futalan told him three (3) days after the incident that he saw the face of the person who shot Jandog but he did not know his name. He admitted during his cross-examination that he was not there when the incident happened. He also admitted that accused-appellant is the son of his relative. 26

The Ruling of the RTC

In its June 23, 2014 decision, the RTC found accused-appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. It ordered accused-appellant to indemnify the family of the victim the sum of Ninety Thousand Pesos (P90,000.00) due to his untimely death. It also directed him to pay actual damages in the amount of Sixty-One Thousand One Hundred Forty-Five Pesos (P61,145.00), attorney's fees in the amount of Twenty-Five Thousand Pesos (P25,000.00), and moral damages in the amount of Fifty Thousand Pesos (P50,000.00). 27

The RTC gave credence to the positive and consistent testimony of eyewitness Antonio, that he actually saw accused-appellant suddenly shoot Jandog while the latter was urinating at the side of the gym. Antonio positively identified accused-appellant as the culprit. It refused to give weight to the testimony of Futalan that it was another person who committed the crime. It found that the falsity of Futalan's testimony became very clear when he stated that the unknown gunman and the victim were facing each other when the latter was shot. His testimony was found inconsistent with the physical evidence since the bullet wound sustained by the victim entered the back portion of his body and exited in front. The physical evidence indicated that the assailant was behind the victim when the shooting occurred. It also gave scant consideration to the testimonies of the other witnesses, considering that they were close relatives and friends of accused-appellant. It held that their denial cannot overcome the positive testimony of Antonio. The same held true for accused-appellant's defense of alibi. 28

The RTC also appreciated the presence of the qualifying aggravating circumstance of treachery. It found that accused-appellant suddenly, and without warning shot the defenseless victim in the back while he was urinating. 29

Accused-appellant appealed the RTC decision before the CA.

The Ruling of the CA

In its July 29, 2016 decision, the CA denied his appeal and affirmed the conviction by the RTC. It found the prosecution's version of events more credible than that of the defense. It adopted with approval the findings of the RTC concerning the testimony of Futalan. It noted that Antonio had no motive to falsely testify against accused-appellant. It affirmed the penalty imposed but modified the damages awarded in accordance with People v. Jugueta30 as follows: civil indemnity from P90,000.00 to P75,000.00 and moral damages from P50,000.00 to P75,000.00. It further awarded exemplary damages in the amount of P75,000.00 and affirmed the award of actual damages in the amount of P61,145.00. It deleted the amount of P25,000.00 awarded as attorney's fees on the ground that the trial court had no basis to grant it. Lastly, it imposed interest at the rate of 6% on the damages awarded reckoned from the date of the finality of the judgment until full payment thereof. 31

Accused-appellant moved for reconsideration of this decision, which was denied by the CA in its February 10, 2017 Resolution. 32

Hence, this appeal.

First, accused-appellant argues that the CA erred in not applying the equipoise rule in his favor. Considering that both prosecution and defense produced an eyewitness to the incident, the case is balanced. The Court, pursuant to the equipoise rule, should decide in his favor. Second, he insists that the CA erred in convicting him because the prosecution failed to prove that he is the culprit who killed the victim. The testimony of Antonio is allegedly plagued with inconsistencies. He points to the incredulity of a grown man accompanying another to urinate and, that for such a good friend, Antonio abandoned the victim after the shooting instead of rendering assistance. Further, he alleges that the prosecution stumbled in proving that the proximate cause of the victim's death was the gunshot wound. Lastly, he contends that there is reasonable doubt that he committed the crime of murder. He relies on the testimony of Futalan that the man who shot the deceased was not him. The fact that Futalan testified that the assailant and the victim were facing one another, a matter inconsistent with the physical evidence, is of no matter since what is important is that Futalan saw the gunman and confirmed it was not the accused-appellant. In fact, he claims that this minor inconsistency is a badge of truth. Also, he contends that Futalan's testimony was corroborated by Elmido. 33

In its September 13, 2017 Comment, 34 the Office of the Solicitor General (OSG), on behalf of the People of the Philippines, argued that the petition is devoid of merit because there is moral certainty that the accused-appellant committed the crime of murder. It points to Antonio's testimony identifying the accused-appellant as the assailant. It argues that the accused-appellant's defense of denial crumbles in the face of the positive identification made by Antonio. It concludes that there is no reason to vacate the assailed decision as there is no evidence that the courts a quo ignored, misconstrued or misinterpreted cogent facts or circumstances which would warrant a modification or reversal of the conviction. 35

In his September 14, 2018 Reply, 36 accused-appellant reiterates that the testimony of Antonio is plagued with inconsistencies as follows: (1) it is unbelievable that a full-grown man would ask someone to accompany him while he urinates. This means that Antonio was not present during the shooting incident and could not have been an eyewitness; and (2) Antonio's abandonment of the victim after the shooting is contrary to his claim that they are good friends. Further, he insists that there is reasonable doubt as to whether he committed the crime due to the testimony of Futalan. Futalan testified that he saw the man who shot the deceased and accused-appellant was not the one he saw. Further, Futalan stated that he saw the person who shot the victim sometime in December 2007 while watching a basketball game in Siaton. Accused-appellant was already incarcerated at this time. He concludes that the Court should apply the equipoise rule and resolve the case in his favor considering it is at a stalemate, both the prosecution and the defense having presented an alleged eyewitness.

ISSUE

WHETHER THE CA CORRECTLY UPHELD ACCUSED-APPELLANT'S CONVICTION FOR THE CRIME OF MURDER.

The Court's Ruling

The Court affirms the assailed CA decision as it correctly upheld accused-appellant's conviction for the crime of murder. Contrary to accused-appellant's assertions, the prosecution established beyond reasonable doubt his culpability for the crime charged. His contention that the equipoise rule should be applied in his favor is unmeritorious because the evidence presented by the prosecution and the defense were not equal. The prosecution, in addition to the eyewitness account of Antonio, presented physical evidence corroborating Antonio's testimony.

Preliminarily, the Court notes that accused-appellant elevated the matter before the Court through an appeal by certiorari. In the appeal of criminal cases, the general rule is that it shall be brought to the Court by filing an appeal by certiorari under Rule 45 of the Rules of Court except when the CA imposes the penalty of "reclusion perpetua, life imprisonment or a lesser penalty," 37 in which case the appeal shall be made by mere notice of appeal filed before the CA. 38 Herein, accused-appellant clearly availed of the wrong mode of appeal when he filed an appeal by certiorari despite having been sentenced by the CA with the penalty of reclusion perpetua. Nonetheless, the Court shall treat the instant petition as an ordinary appeal in the interest of substantial justice so as to resolve the substantive issues at hand with finality. 39

It is well-established that "in criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's decision based on grounds other than those that the parties raised as errors. The appeal confers the appellate court full jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law." 40

The elements for the crime of murder under Article 248 41 of the Revised Penal Code (RPC) are as follows: "(1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) that the killing is not parricide or infanticide." 42

In the instant case, the prosecution established beyond reasonable doubt the presence of all the elements of murder under Article 248.

First: The prosecution

The prosecution established the fact of the victim's death through the presentation of his Certificate of Death. 43 This was prepared by Dr. Retuya, who conducted the post-mortem examination on the victim. The said document certified that Jandog was dead on arrival at Cong. Lamberto L. Macias Memorial Hospital, Siaton, Negros Oriental on December 6, 2005.

Second: The prosecution

Accused-appellant's identity as the perpetrator of the crime was established beyond reasonable doubt by the testimony of Antonio and the physical evidence corroborating the same.

Antonio's eyewitness testimony identified accused-appellant as the perpetrator of the crime. He clearly stated that he saw accused-appellant shoot the victim from the back, coming from his right side. The pertinent excerpts from his testimony are as follows:

ATTY. LLOSA (TO THE WITNESS):

Q: So, you were requested by Roderick Jandog to accompany him when he urinates. Now, were you able to accompany him?

A: Yes.

Q: Where did Roderick Jandog urinate?

A: At the side of the stage.

COURT (TO THE WITNESS):

Q: Beside the stage there is a comfort room for comforting oneself?

A: None.

Q: So, you just went to the side of the stage for Roderick to urinate himself?

A: Yes.

ATTY. LLOSA (TO THE WITNESS):

Q: Was he able to urinate?

A: While he was urinating, Genebie Ragay suddenly approached him.

Q: What happened next when Genebie Ragay approached Roderick Jandog while urinating?

A: Genebie Ragay suddenly pulled out a gun and immediately shoot Roderick Jandog.

Q: How far were you at the scene of this incident when Genebie Ragay shot Roderick Jandog while urinating?

ACTING INTERPRETER:

Witness pointing to the wall which is,

ATTY. LLOSA:

3 meters, more or less.

COURT (TO THE WITNESS):

Q: His back was facing you?

A: His back was facing at me.

Q: From where did Genebie Ragay come from?

A: I do not know where he came from. It was very sudden.

Q: But do you know if he came from the front of Roderick, or from the back, or from the side?

A: He was passing by the side of Roderick.

ATTY. LLOSA (TO THE WITNESS):

Q: In what side of Roderick was Genebie Ragay positioned?

A: Right side.

Q: Now, after shooting Roderick Jandog, what happened to Roderick Jandog?

A: He stumbled down.

xxx xxx xxx

Q: Now, you told the Court that you saw Genebie Ragay shot Roderick Jandog. Was Roderick Jandog hit?

A: Yes.

COURT (TO THE WITNESS):

Q: How did you know that he was hit?

A: I saw him shot Roderick.

Q: Did you hear a gunfire at that time?

A: Yes, I heard.

Q: Did you see the gun used in shooting Roderick?

A: I saw.

Q: Can you describe the gun?

A: Yes.

Q: Try to describe it to the Court.

A: It's like a form of 45.

Q: So, you have seen a 45 caliber pistol?

A: Yes, like the one used by the police. 44 (emphasis supplied)

In contrast, Futalan testified that the assailant and the victim were facing one another when the assailant shot the victim:

ATTY. BEJAR:

Q: Mr. Witness, could you kindly tell this Honorable Court what was the distance between the assailant and the person who was shot at that time of the shooting in your estimate?

A: My estimate is one-half meter only there was a reel in between the person who was the assailant on the top of the stage and the person shot who was urinating.

COURT:

Q: They were facing each other?

A: Yes, Your Honor, the person who shot was at the top of the stage and he drew his weapon in front of me and he shot the person urinating at the back of the stage. 45

Futalan repeated this during the continuation of his direct testimony, as follows:

COURT (TO WITNESS):

Q: You saw the person being shot?

A: Yes, I saw, Your Honor.

Q: He was urinating?

A: He was urinating, he was standing there.

Q: He was facing you?

A: Yes, Your Honor he was facing.

Q: And the person who shot the person urinating was also facing him, right?

A: He was facing him, Your Honor.

Q: So he shot him in front?

A: Yes.

Q: And he was hit in front?

A: Yes, he was hit in front.

Q: You saw that he was hit by that shot in front of the person who shot him, you are sure of that?

A: When he was shot, I did not know where he was shot, but the thing is when the victim was shot, he just dropped and shouted, "buang, buang" ("crazy, crazy").

Q: But they were facing each other when you heard the shot, because you said you did not see anymore when he was hit. You change your statement? You said a while ago that you saw him shot the person, right?

A: I saw it.

Q: So they were facing each other?

A: Yes, Your Honor.

Q: So he was hit in front of his body, that's what you are saying?

A: I do not know where he was hit, Your Honor but maybe in front because he was facing [. . .] Your Honor.

Q: But they were facing each other when that person was shot by the person who came from the back of the stage?

A: Yes, they were facing each other. 46

Antonio's testimony is more credible than that of Futalan. This is because Antonio's testimony as to accused-appellant's position in relation to the victim during the shooting is corroborated by the physical evidence presented.

The Out Patient Record Card, prepared by Dr. Retuya, 47 expressly provides that the victim was "Pronounced Dead on Arrival" 48 with the following diagnosis:

Gunshot Wound; Thru & Thru49

This is echoed by the victim's Certificate of Death. 50 The said certificate provides, under causes of death, that the victim died of a "Gunshot Wound; Thru & Thru. Entrance Wound = Scapular Area, (R), Exit Wound = Anterior Chest, (L)." 51

Finally, Dr. Retuya testified in the same vein:

PROS. AGAN:

xxx xxx xxx

Q: In this record card docketed as Case 22107 it is indicated that the entrance wound is in the scapular area, can you point the part of your body Doctor that will tell us where the scapular area is which was the entrance wound.

A: Scapular area is situated at the back at the right side.

INTERPRETER:

Witness pointing at his back right side.

PROS. AGAN:

Q: To be more exact Doctor, let us use the interpreter as model and kindly touch that particular area which you say is the scapular area and which was the entrance wound.

A: This is the scapular area the right.

PROS. AGAN:

Witness is indicating both the right and the left scapular area and said that the injury which is identified as the entrance wound is located below the right scapular area which is about eight (8) inches.

COURT:

Depending on the person, the deceased could probably [be] tall.

PROS. AGAN:

At any rate[,] at the back right portion.

COURT:

Noted.

PROS. AGAN:

Q: You also indicated in this record card the exit wound is at the anterior chest left, can you show us thru your body Doctor the location of this exit wound?

A: Here in the left chest.

PROS. AGAN:

Witness is touching his left chest, thank you Doctor. 52

It is clear that the identity of accused-appellant as the assailant was established by the prosecution through his positive identification by Antonio, as corroborated by the physical evidence. There is no showing that Antonio was impelled by evil motive to implicate accused-appellant.

At this juncture, the Court deems it prudent to address the arguments raised by the defense.

Contrary to accused-appellant's contention, the equipoise rule cannot be applied in the instant case.

The Court has previously stated that "[u]nder the equipoise rule, where the evidence on an issue of fact is in equipoise, or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not suffice to produce a conviction." 53 "Briefly stated, the needed quantum of proof to convict the accused of the crime charged is found lacking." 54

The equipoise rule applies only in instances when there is doubt on which side the evidence preponderates. It does not apply in cases where the prosecution established beyond reasonable doubt the guilt of the accused-appellant, as in this case.

It is true that both sides presented conflicting versions of events. In support of their versions, each side presented an alleged eyewitness to the crime. However, this is where the similarities end between the evidence presented by the prosecution and that presented by the defense. The evidence preponderates in favor of the prosecution on account of the physical evidence corroborating Antonio's testimony. As discussed above, Antonio testified that accused-appellant shot the victim from behind, coming from his right side. This matches the physical evidence, which shows that the victim was shot from the back. The entrance wound is on the victim's right scapular area, or his right back side, while the exit wound is on the victim's left chest area.

In turn, the physical evidence cast serious doubts on the truth of Futalan's testimony. He was questioned several times by the RTC on the position of the alleged assailant he saw vis-à-vis the victim during the shooting. He repeatedly answered that the assailant and the victim were facing one another during the shooting. This is inconsistent with the physical evidence. Again, the entry wound was found on the victim's right back side. Accordingly, Futalan's testimony cannot be given any credence.

This inconsistency is not minor, as the defense argues. This inconsistency is material in determining the truth or falsity of Futalan's testimony. Further, the fact that Futalan's testimony was corroborated by Elmido is of no moment. Elmido only testified that Futalan told him he saw the person who shot the victim, that the face was clear but that he did not know the name of that person. 55 He did not corroborate Futalan's testimony as to its material points: who actually shot the victim and whether they were face to face. Besides, their testimonies cannot overcome the strength of Antonio's testimony as corroborated by the physical evidence. On this basis, the Court finds that the evidence preponderates in favor of the prosecution.

The Court reiterates that "[t]he equipoise rule is applicable only where the evidence of the prosecution and the defense are so evenly balanced as to call for the tilting of the scales in favor of the accused who is presumed innocent under the Bill of Rights. The rule is not applicable here because there is no equipoise. The evidence of the prosecution is heavier than that of the defense and has overcome the constitutional presumption of innocence in favor of the [accused-]appellant." 56

With regard the supposed inconsistencies in Antonio's testimony, the Court finds the same to be unworthy of consideration. Accused-appellant's argument concerning the unbelievable quality of a full grown man asking another to accompany him to urinate is belied by the fact that the victim had reason to do so. Antonio testified that the accused-appellant threatened the victim when he refused to accept the marijuana being offered to him. The pertinent excerpt from Antonio's testimony is as follows:

ATTY. LLOSA (TO THE WITNESS):

xxx xxx xxx

Q: So you stopped at Genebie's house?

A: Yes.

Q: Now, what did you do there?

A: Roderick Jandog approached Genebie Ragay and informed him that he will borrow a long pants for the use of Daryl Antonio and Genebie Ragay refused to lend a long pants and instead offered [a] marijuana.

Q: Now, when Genebie Ragay offered marijuana to Roderick Jandog, what was the reaction of Roderick Jandog?

A: Roderick Jandog refused.

xxx xxx xxx

Q: I will go back to my previous question. What did Genebie Ragay do when Roderick Jandog refused the offer of marijuana?

A: When Roderick Jandog refused to accept the offer of Genebie, Genebie Ragay got angry and uttered words in the vernacular, "Ayaw pagsalig sa imong lawas nga dako kay madutlan rana ug bala (Do not rely much on your big body because it can be penetrated with a bullet.)" 57

Due to this threat, the victim asked Antonio to accompany him while he urinated. Antonio testified in this wise:

ATTY. BEJAR (to witness):

Q: And so in other words, Mr. Witness, from the time Roderick Jandog started urinating, up to the time of the incident, you were just looking at his back, am I correct?

A: Yes, I was looking at him.

Q: And you did not look at any other place during this duration except the back of Roderick Jandog, am I correct?

A: Yes, I was waiting for him to finish urinating.

COURT (to witness):

Q: Again, why were you facing the back of Roderick Jandog?

A: Because we were afraid when we received the death threat, that's why my attention was on Roderick.

Q: Your purpose of watching is to find out whether he will be attacked?

A: No, I was just watching him.

Q: Meaning, you are watching him for his safety?

A: Yes.

Q: That's your purpose?

A: Yes, I was watching him because of the death threat. 58

Clearly, there was good reason why Antonio accompanied the victim while he urinated.

Also underserving of consideration is accused-appellant's contention that Antonio's abandonment of the victim after the shooting is contrary to his claim of them being good friends. As testified by Antonio, his fear caused him to run away after the shooting. 59

The identity of accused-appellant as the assailant was established beyond reasonable doubt by the prosecution.

Third: The prosecution

The prosecution also established that treachery attended the killing. There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof, which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make. 60 Here, the prosecution established that the victim was shot in the back by accused-appellant, rendering him helpless and unable to defend himself from his assailant. Treachery indeed attended the killing.

Fourth: The killing is not

The last element that the killing be not parricide or infanticide is also present. There is no allegation that accused-appellant and the victim are related to one another.

On the basis of the foregoing, the Court finds that the guilt of the accused-appellant for the crime of murder against Jandog was established beyond reasonable doubt by the prosecution.

Penalty Imposed and Damages

The penalty of reclusion perpetua is affirmed.

Art. 248 of the RPC states:

Art. 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 perpetua, to death if committed with any of the following attendant circumstances:

1. With treachery x x x

The penalty for the crime of murder is reclusion perpetua to death. 61 These two penalties are indivisible. Since neither mitigating nor aggravating circumstances are present, the lesser of the two penalties, which is reclusion perpetua, shall be applied. 62 Pursuant to Section 3 63 of Republic Act (R.A.) No. 9346, 64 accused-appellant shall not be eligible for parole under Act No. 4103. 65

The Court also affirms the award of civil indemnity, moral damages, and exemplary damages in the amount of Seventy-Five Thousand Pesos (P75,000.00) each.

However, the Court deems it proper to delete the award of actual damages in the amount of Sixty-One Thousand One Hundred Forty-Five Pesos (P61,145.00) and to instead award temperate damages in the amount of Fifty Thousand Pesos (P50,000.00) pursuant to People v. Jugueta66 and People v. Racal. 67

The prosecution presented the following documentary evidence in support of their claim of actual damages:

1. Siaton Funeral Homes Official Receipt No. 0037, dated October 16, 2006, in the amount of P28,000.00; 68

2. Recibo, dated December 7, 2005, in the amount of P10,000.00; 69 and

3. Summary of Expenses for the tomb, tombstone, and others duly signed by Romeo M. Ege, in the amount of P11,125.00. 70

As may be observed, the documentary evidence presented by the prosecution only supports an award of actual damages in the amount of Forty-Nine Thousand One Hundred Twenty-Five Pesos (P49,125.00). Hence, it is improper to affirm the award of actual damages in the amount of P61,145.00.

In People v. Racal, 71 the Court stated that "x x x when actual damages proven by receipts during the trial amount to less than the sum allowed by the Court as temperate damages, the award of temperate damages is justified in lieu of actual damages which is of a lesser amount. Conversely, if the amount of actual damages proven exceeds, then temperate damages may no longer be awarded; actual damages based on the receipts presented during trial should instead be granted. The rationale for this rule is that it would be anomalous and unfair for the victim's heirs, who tried and succeeded in presenting receipts and other evidence to prove actual damages, to receive an amount which is less than that given as temperate damages to those who are not able to present any evidence at all." 72

Prevailing jurisprudence fixes the amount of P50,000.00 as temperate damages in murder cases. 73 Since the amount actually proven by the prosecution is only P49,125.00, less than the sum of temperate damages allowed by the Court, it is proper to delete the award of actual damages and instead award temperate damages of P50,000.00.

WHEREFORE, the July 29, 2016 Decision and February 10, 2017 Resolution of the Court of Appeals, in CA-G.R. CR-HC No. 01916 is AFFIRMED with MODIFICATIONS.

Accused-appellant Genebie Ragay is found GUILTY beyond reasonable doubt of the crime of murder punishable under Article 248 of the Revised Penal Code. He is SENTENCED to suffer the penalty of reclusion perpetua. Further, he is ORDERED to pay civil indemnity in the amount of P75,000.00, moral damages in the amount of P75,000.00, exemplary damages in the amount of P75,000.00, and temperate damages in the amount of P50,000.00. Interest rate of 6% per annum shall be imposed on all damages awarded from the finality of this judgment until fully paid.

The profuse apology and compliance of Atty. Richard M. Catacutan, counsel for accused-appellant, with the Show Cause Resolution dated June 27, 2018, stating that he believed in good faith that after the lapse of the period given by the Court to file a reply, the case shall be submitted for resolution, and admitting that he committed an error in judgment but assures the Court that he has now learned his lesson, with attached reply to the Office of the Solicitor General's comment on the petition for review on certiorari; the accused-appellant's reply to the Office of the Solicitor General's comment on the petition for review on certiorari, in compliance with the Resolution dated November 8, 2017; and the letter dated November 22, 2018 of Mr. Mario C. Agura, Chief, Archives Unit, Court of Appeals, Cebu City, in compliance with the Resolution dated September 26, 2018, transmitting the Court of Appeals rollo of CA G.R. CR HC No. 01916 consisting of 192 pages, two (2) folders of Regional Trial Court original records, one (1) folder of exhibits, three (3) folders of table of contents, information, resolution, etc., one (1) folder of original transcript of stenographic notes and three (3) folders of duplicate transcript of stenographic notes, are all NOTED.

SO ORDERED."

Very truly yours,

(SGD.) LIBRADA C. BUENADivision Clerk of Court

 

Footnotes

1.Rollo, pp. 9-24; penned by Associate Justice Marilyn B. Lagura-Yap, with Associate Justices Gabriel T. Ingles and Geraldine C. Fiel-Macaraig, concurring.

2.Id. at 26-29.

3. CA rollo, pp. 28-40; penned by Judge Rosendo B. Bandal, Jr.

4. Records, Vol. 1, pp. 2-3.

5.Id. at 2.

6.Id. at 56.

7. Exhibit "A," folder of exhibits.

8. Exhibit "B," folder of exhibits.

9. CA rollo, p. 29.

10.Id.

11.Id.

12.Id.

13.Id.

14.Id.

15.Id. at 29-30.

16.Id. at 30.

17. Referred to as "Pel M. Namucatcat" in the RTC Decision and in the TSN; "Pell Miland Namocatcat" in the affidavit, records, Vol. I, p. 34.

18. CA rollo, p. 33.

19.Id.

20.Id.

21.Id. at 31 & 32.

22.Id. at 31.

23.Id.

24.Id.

25.Id.

26. Id. at 32.

27. Id. at 39.

28. Id. at 34-38.

29. Id. at 38-39.

30. 783 Phil. 806 (2016).

31. Rollo, pp. 17-23.

32. Supra note 2.

33. Rollo, pp. 41-47.

34. Id. at 91-101.

35. Id. at 94-99.

36. Id. at 114-118.

37. Ramos, et al. v. People, 803 Phil. 775, 782 (2017).

38. Id.

39. Id. at 782-783.

40. Id. at 783.

41. Art. 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 perpetua, 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.

   2. In consideration of a price, reward, or promise.

   3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

   4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

   5. With evident premeditation.

   6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

42. People v. Lagman, 685 Phil. 733, 743 (2012); citing People v. Gabrino, 660 Phil. 485, 495 (2011); and People v. Dela Cruz, 626 Phil. 631, 639 (2010).

43. Supra note 7.

44. TSN, September 13, 2006, pp. 13-16.

45. TSN, March 5, 2008, p. 7.

46. TSN, April 10, 2008, pp. 9-10.

47. Supra note 7.

48. Id.

49. Id.

50. Supra note 8.

51. Id.; Exhibit "B-2," folder of exhibits.

52. TSN, September 27, 2006, pp. 6-8.

53. People v. CA, et al., 640 Phil. 396, 414-415 (2010).

54. Tin v. People, 415 Phil. 1, 12 (2001).

55. TSN, January 9, 2009, p. 6.

56. People v. Ramilla, 298 Phil. 372, 377 (1993).

57. TSN, September 13, 2006, pp. 7-9.

58. TSN, October 19, 2006, pp. 23-24.

59. Id. at 25.

60. Cirera v. People, 739 Phil. 25, 44 (2014); REVISED PENAL CODE, Art. 14 (16).

61. REVISED PENAL CODE, Art. 248.

62. REVISED PENAL CODE, Art. 63, second paragraph.

63. SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

64. Anti-Death Penalty Law.

65. Indeterminate Sentence Law.

66. Supra note 30.

67. G.R. No. 224886, September 4, 2017, 838 SCRA 476.

68. Exhibit "D," folder of exhibits.

69. Exhibit "D-1," folder of exhibits.

70. Exhibit "D-2," folder of exhibits.

71. Supra note 67.

72. Id. at 498.

73. Supra note 30.