SECOND DIVISION
[ G.R. Nos. 101107-08, June 27, 1995 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO BARROS Y BALTAZAR, ACCUSED-APPELLANT.
D E C I S I O N
NARVASA, C.J.:
This is an old case, going back to May 14, 1984 which, it may be recalled, was the day set by law for the election of representatives of the former legislature, the Batasang Pambansa. It would seem, however, that the elections were not the
primary concern of Romeo Barros, the number one councilman of Poblacion, Tubao, La Union, and designated election watcher, it was, apparently, the extermination of his enemy, Tubao Vice-Mayor Gregorio "Gene" Mapalo Jr.
As early as 9 o'clock in the morning of that day, Barros went to Mapalo's house, and very shortly thereafter gunshots rang out. This brought Reynaldo Gonzales, a neighbor of Mapalos, to the gate at the rear of his home. He saw Romeo Barros walking down the road behind the Mapalo residence, a gun tucked at his waist. Evidently Reynaldo had foreknowledge of Barros' sinister intent against Mapalo, for the first question he asked was: "Did you get him?" The quick reply was, "He was able to fly. I will kill Gene." Reynaldo says that he then attempted to dissuade Barros from carrying out his malevolent design by suggesting that he attend to his job as election watcher. Barros ignored him and walked away.[1]
Reynaldo Gonzales saw Barros again later that morning, at about 11:30 o'clock. Reynaldo was then seated at his father's store, located adjacent to their house. Nearby, another person, Mariden Milanes, was tending her own store fronting the main road of the Poblacion. Both Reynaldo and Mariden noticed Barros sauntering up the road coming from the North. They saw that after passing the Gonzales store, and while in front of the Gonzaleses' residence, Barros pointed a small gun held in his fist towards the south of the road and fired three successive shots in the direction of the house of Vice-Mayor Gregorio Mapalo, Jr. They both also heard Barros shouting invectives in the local dialect against Vice-Mayor Mapalo, and challenging him to come out of the house to confront him (Barros), after which Barros reloaded his gun.
The gunshots turned the attention of Isabelo Gonzales (Reynaldo's father) to the place where Barros was. He saw his son, Reynaldo, talking to Barros, attempting to deter the latter from carrying out his nefarious objective. Isabelo heard his son say to Barros, "That's enough," and "Never mind that." Barros however continued to hurl imprecations against Vice-Mayor Mapalo and to demand that he come out. Then, as Isabelo, Reynaldo Gonzales, and Mariden Milanes watched, Barros again raised his gun and fired three more shots towards the house of Vice-Mayor Mapalo.
When the first three shots were fired at the Mapalo bungalow a few minutes earlier, Mrs. Lydia Mapalo, the wife of Vice-Mayor Mapalo, immediately dashed out of her room to the sala. There she saw her son, Jojo, and her daughter; they said they were probably the target of the gunshots for the jalousies of the window at the northern wall of their house had been shattered. She peered through that window and saw Romeo Barros re-loading his gun, shouting curses, raising the gun, aiming it at their house, and firing three more shots.
As the sound of the gunshots was dying out, Lydia became aware of her son Jojo falling face down on the floor, blood oozing from his nose. She began shouting for help, and became quite hysterical. Her screams and the sounds of commotion in the Mapalo residence following the second group of shots were heard by the Gonzaleses, father and son, and Mariden. They heard people shouting: Jojo was gone, Jojo was dead.
Police Chief Ricardo Fronda rushed to the Mapalo bungalow. He had heard the first three gun shots, while in his office around thirty (30) or forty (40) meters away, and correctly surmised that they had come from the vicinity of the Mapalos' house. The first thing Fronda saw was Jojo Mapalo lying prone on the floor of the sala, blood flowing profusely from his head. Fronda instructed Lydia to bring her son to the hospital. Immediately, Lydia's relatives took Jojo to the Doña Gregoria Memorial Hospital.
Vice-Mayor Mapalo soon arrived at his house, and he and his wife immediately proceeded to the hospital. There they were advised to rush their son to the Baguio General Hospital. It was too late. Jojo Mapalo was already dead. His death was officially pronounced by the doctors at 2:15 p.m. that same day, due to "intracranial hemorrhage, massive, secondary to gunshot wound with brain tissue maceration."[2]
Meanwhile, Chief Fronda examined the Mapalos' house and found: (a) a superficial bullet hole on the concrete south wall; (b) two (2) or three (3) broken slats or blades of the glass jalousies of the window of the north wall; (c) a slug about a meter from the superficial bullet hole, inside the house and below the broken jalousies; and (d) a bullet hole in the canvas roof of the garage outside the house.[3]
Fronda then proceeded to the residence of Romeo Barros, being informed that the latter had just been seen there. He requested permission to search the house, and Romeo and his brother, Rolando, nodded their heads in assent. The search was conducted in the presence of barangay officials, and yielded a .38 caliber Smith & Wesson revolver with serial number J219345, one round of live ammunition, and three "empty/spent" shells. The gun was found atop a rooster coop or cage at the back of the house, inconspicuously covered with a cardboard box.
Separate criminal actions for murder (with the qualifying circumstances of treachery and evident premeditation alleged to be present in the commission of the crime) and illegal possession of firearm were thereafter commenced against Romeo Barros y Baltazar in the Regional Trial Court of Agoo, La Union,[4] docketed as Criminal Cases Nos. A-1381 and A-1389, respectively. The cases were jointly heard, having arisen from a single incident involving the same accused.
The State's evidence, which substantially tended to establish the facts and circumstances just related, consisted chiefly of the testimony of Mariden Milades, Isabelo Gonzales, Reynaldo Gonzales, Lydia Mapalo, Police Chief Fronda. The following expert witnesses were also presented:
(1) Dr. Juan A. Redor, Jr. who testified on his findings at the post-mortem examination conducted by him, to wit: the presence of a gun shot wound on the occipital area of Jojo Mapalo's brain measuring one (1) cm. through and through, and a slug, recovered from beneath the skin on the right occipital region.[5]
(2) Ireneo S. Ordiano, Jr., a senior Ballistician of the National Bureau of Investigation, who deposed on the conclusions derived by him from his ballistic tests on the firearm recovered from Barros, its single round of live ammunition, three (3) slugs and three (3) empty shells, to wit: that the items possessed similar markings and that the bullets and shells were fired from the gun tested.[6]
(3) Julita de Villa, a forensic chemist of the NBI, who testified that she conducted a paraffin test on the person of Barros and found both his hands positive for gun powder nitrates.[7]
(4) Capt. Joffrey E. Palalay, Chief of Records, Legal and Research Branch, Firearms and Explosive Unit of Camp Crame, who had issued a formal certification to the effect that Romeo Barros was not the licensee of any kind and caliber of firearm, per verification from the records of his unit, said records containing a master list of all firearm licensees throughout the country.[8]
Proof of the damages suffered by the family as a result of Barros' slaying of Jojo Mapalo was also given by the mother, Lydia Mapalo.
In his defense, Romeo Barros posited a different version of the tragic event. On the witness stand, he asserted that on the date and time in question he was drinking with Reynaldo Gonzales and some other friends in front of the town plaza near the grocery of Gonzales in the course of which a heated discussion ensued about the number of votes their respective political candidates would garner by the end of the day. Suddenly, Reynaldo drew a gun and pointed it upwards. Knowing that it was illegal to carry a firearm publicly on election day, Barros grappled with Gonzales for possession of the gun. While they were thus engaged, the gun came to be pointed to the south of the road at which juncture it accidentally went off three times. Barros eventually succeeded in taking control of the weapon, left the place and went home. He placed the gun on the rooster pen, intending to surrender it to the police authorities; but the intended surrender was overtaken by events; before he could go to the police, the latater came and confiscated the firearm.
Reynaldo Gonzales was recalled to the stand, as rebuttal witness. He belied Barros' version of the incident. He denied that the pistol was his. He reiterated his earlier testimony that it was Barros who was in possession of the gun, that he saw Barros walk up the road, stop in front of his (Gonzales') house, raise his arm and discharge the firearm at the Mapalos' house.
On November 20, 1990, the Trial Court rendered a decision finding Barros guilty of the charges against him.[9] The dispositive portion reads:
The appeal must fail.
The Court rejects this tale supported by naught but appellant's bare word. Against the testimony of the three witnesses who positively pointed to him as the person who intentionally fired his gun in the direction of the Mapalo residence namely, Mariden Milades, Isabelo Gonzales, Reynaldo Gonzales appellant's uncorroborated story that the gun had accidentally been discharged as he was wrestling with Reynaldo for its possession, cannot prevail. Not only are the declarations in Court of said three (3) witnesses untainted by any material self-contradiction or other serious flaw, and entirely consistent with one another, but the Court also perceives no reason whatever for any one of them to testify falsely against appellant Barros.
There is yet another reason why appellant's version of the shooting is difficult to accept, and that is, that it was made public only when he testified in Court in his deffense. He claims, to be sure, that he had told his story the CLAO lawyers now representing him. He does not however explain why he did not disclose it to his first lawyer, Atty. Arthur Galace, or to any of the police officers when he was taken into custody or at any other time afterwards. If his story of the accidental discharge of the firearm were true, the Court sees no rational explanation for Barros' reticence in revealing it to the authorities or his lawyer. Indeed, its immediate divulgence would have been the natural, expected reaction of an innocent individual wrongly suspected of a killing. All things considered, his story appears to be a last-minute attempt to exculpate himself by ventilation of a contrived and seemingly plausible explanation for the death of Jojo Mapalo.
The Court however cannot see its way clear to upholding the Trial Court's conclusion that the killing was attended by the qualifying circumstances of treachery and evident premediation.
It is elementary that alevosia, to be appreciated, must be proved as clearly as the alements of the crime or crimes it is alleged to qualify. It must be proved that the accused had consciously and deliberately employed a form of attack to ensure the consummation of his objective without risk to himself from any defense the person assaulted could have made.[10] Under the established circumstances, it could not be said that Barros had deliberately adopted a manner of attack which would ensure the execution of the crime without risk to himself from any measures which his intended victim might take. Barros was in the middle of the road, in broad daylight, when he discharged two (2) volleys of three (3) shots each in the direction of the Mapalos' residence. The first three shots -- none of which hit any person already placed Jojo Mapalo, his sister and his mother on their guard; in fact, Jojo had remarked to his mother at the time that they were probably the targets of the pistol shots. They could have taken steps to protect and defend themselves; actually, they saw Barros re-loading his gun and aiming it at their house again before discharging it at them a second time. Unfortunately, Jojo Mapalo was apparently a little late in taking cover, and was hit in the head by one of the bullets.
Neither may this Court appreciate the qualifying circumstance of evident premeditation against appellant. As with alevosia, evident premeditation must be established with as much certainty and clarity as the criminal act itself. It is necessary to prove (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.[11] While the existence of the first and third requisites appear to have been adequately proven, there is some ambivalence in the proof about the second, there being no substantially appreciable interval of time between the first and second groups of shots directed at the Mapalos' house, such that the discharge of those two volleys within a minute or two of each other might be considered as only one continuing event. In any event, even if the existence of all the elements of evident premeditation is conceded, it still cannot be appreciated against appellant for the reason that the actual victim was different from the intended one. It "is settled that evident premeditation cannot be appreciated in a case where, although the accused had planned the perpetration of the killing, the victim was different from the person whom the accused had originally intended to kill (See Aquino, the Revised Penal Code, Vol. 1, 1976 ed., p. 341, citing cases)."[12]
Now, appellant was also convicted by the Trial Court of illegal possession of firearm, in its aggravated form.[13] The evidence does convincingly prove that appellant is not a licensee of any firearm or ammunition and that Jojo Mapalo was slain with the unlicensed firearm in question. However, appellant may not in the premises be convicted of two separate offenses, but only of that of illegal possession of firearm in its aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe.
The indemnity for death awarded by the Trial Court should be increased from P35,000.00 to P50,000.00, conformably with prevailing doctrine.
WHEREFORE, the Trial Court's judgment in Criminal Case No. A1381, convicting said appellant of the offense of murder, is SET ASIDE. The judgment of the same Trial Court in Criminal Case No. A-1389 sentencing appellant Barros to reclusion perpetua for the crime of illegal possession of firearm in its aggravated form, and decreeing the forfeiture in favor of the government of the firearm and ammunition seized from the accused, is AFFIRMED, and in addition, the appellant is ORDERED to pay the heirs of the victim the amounts of damages awarded by the Trial Court except that of the death indemnity, which is increased to P50,000.00.
SO ORDERED.
Regalado, Puno, and Mendoza, JJ., concur.
[1] TSN, November 2, 1988; pp. 3-6
[2] Records, Exh. A-1
[3] Rollo, pp. 36-37
[4] Branch 32, Hon. Leo M. Rapatalo presiding.
[5] See Records, Exh. A-1
[6] See Records, Exh. F-3
[7] See Rollo, P. 35
[8] See Records, Exh. P
[9] Rollo, pp. 27-59
[10] People v. Amaguin, 229 SCRA 166; People v. Ocana, 229 SCRA 341; People v. Salveron, 228 SCRA 92; People v. Guadran, 228 SCRA 583
[11] People v. Lug-aw, 229 SCRA 308; People v. Cardova, 224 SCRA 319; People v. Balatucan, 206 SCRA 81
[12] People v. Dueño, 90 SCRA 23, 37, citing Peo. v. Mabug-at, 51 Phil. 967 (1926), Peo. v. Guevarra, L-24371, April 16, 1968, 23 SCRA 58; Peo. v. Guillen, 85 Phil. 307, 318-319 (1950), Peo. v. Umali, 96 Phil. 185, 201 (1954).
[13] People v. Caling, G.R. No. 94784, May 8, 1992; People v. Arce, 227 SCRA 406
As early as 9 o'clock in the morning of that day, Barros went to Mapalo's house, and very shortly thereafter gunshots rang out. This brought Reynaldo Gonzales, a neighbor of Mapalos, to the gate at the rear of his home. He saw Romeo Barros walking down the road behind the Mapalo residence, a gun tucked at his waist. Evidently Reynaldo had foreknowledge of Barros' sinister intent against Mapalo, for the first question he asked was: "Did you get him?" The quick reply was, "He was able to fly. I will kill Gene." Reynaldo says that he then attempted to dissuade Barros from carrying out his malevolent design by suggesting that he attend to his job as election watcher. Barros ignored him and walked away.[1]
Reynaldo Gonzales saw Barros again later that morning, at about 11:30 o'clock. Reynaldo was then seated at his father's store, located adjacent to their house. Nearby, another person, Mariden Milanes, was tending her own store fronting the main road of the Poblacion. Both Reynaldo and Mariden noticed Barros sauntering up the road coming from the North. They saw that after passing the Gonzales store, and while in front of the Gonzaleses' residence, Barros pointed a small gun held in his fist towards the south of the road and fired three successive shots in the direction of the house of Vice-Mayor Gregorio Mapalo, Jr. They both also heard Barros shouting invectives in the local dialect against Vice-Mayor Mapalo, and challenging him to come out of the house to confront him (Barros), after which Barros reloaded his gun.
The gunshots turned the attention of Isabelo Gonzales (Reynaldo's father) to the place where Barros was. He saw his son, Reynaldo, talking to Barros, attempting to deter the latter from carrying out his nefarious objective. Isabelo heard his son say to Barros, "That's enough," and "Never mind that." Barros however continued to hurl imprecations against Vice-Mayor Mapalo and to demand that he come out. Then, as Isabelo, Reynaldo Gonzales, and Mariden Milanes watched, Barros again raised his gun and fired three more shots towards the house of Vice-Mayor Mapalo.
When the first three shots were fired at the Mapalo bungalow a few minutes earlier, Mrs. Lydia Mapalo, the wife of Vice-Mayor Mapalo, immediately dashed out of her room to the sala. There she saw her son, Jojo, and her daughter; they said they were probably the target of the gunshots for the jalousies of the window at the northern wall of their house had been shattered. She peered through that window and saw Romeo Barros re-loading his gun, shouting curses, raising the gun, aiming it at their house, and firing three more shots.
As the sound of the gunshots was dying out, Lydia became aware of her son Jojo falling face down on the floor, blood oozing from his nose. She began shouting for help, and became quite hysterical. Her screams and the sounds of commotion in the Mapalo residence following the second group of shots were heard by the Gonzaleses, father and son, and Mariden. They heard people shouting: Jojo was gone, Jojo was dead.
Police Chief Ricardo Fronda rushed to the Mapalo bungalow. He had heard the first three gun shots, while in his office around thirty (30) or forty (40) meters away, and correctly surmised that they had come from the vicinity of the Mapalos' house. The first thing Fronda saw was Jojo Mapalo lying prone on the floor of the sala, blood flowing profusely from his head. Fronda instructed Lydia to bring her son to the hospital. Immediately, Lydia's relatives took Jojo to the Doña Gregoria Memorial Hospital.
Vice-Mayor Mapalo soon arrived at his house, and he and his wife immediately proceeded to the hospital. There they were advised to rush their son to the Baguio General Hospital. It was too late. Jojo Mapalo was already dead. His death was officially pronounced by the doctors at 2:15 p.m. that same day, due to "intracranial hemorrhage, massive, secondary to gunshot wound with brain tissue maceration."[2]
Meanwhile, Chief Fronda examined the Mapalos' house and found: (a) a superficial bullet hole on the concrete south wall; (b) two (2) or three (3) broken slats or blades of the glass jalousies of the window of the north wall; (c) a slug about a meter from the superficial bullet hole, inside the house and below the broken jalousies; and (d) a bullet hole in the canvas roof of the garage outside the house.[3]
Fronda then proceeded to the residence of Romeo Barros, being informed that the latter had just been seen there. He requested permission to search the house, and Romeo and his brother, Rolando, nodded their heads in assent. The search was conducted in the presence of barangay officials, and yielded a .38 caliber Smith & Wesson revolver with serial number J219345, one round of live ammunition, and three "empty/spent" shells. The gun was found atop a rooster coop or cage at the back of the house, inconspicuously covered with a cardboard box.
Separate criminal actions for murder (with the qualifying circumstances of treachery and evident premeditation alleged to be present in the commission of the crime) and illegal possession of firearm were thereafter commenced against Romeo Barros y Baltazar in the Regional Trial Court of Agoo, La Union,[4] docketed as Criminal Cases Nos. A-1381 and A-1389, respectively. The cases were jointly heard, having arisen from a single incident involving the same accused.
The State's evidence, which substantially tended to establish the facts and circumstances just related, consisted chiefly of the testimony of Mariden Milades, Isabelo Gonzales, Reynaldo Gonzales, Lydia Mapalo, Police Chief Fronda. The following expert witnesses were also presented:
(1) Dr. Juan A. Redor, Jr. who testified on his findings at the post-mortem examination conducted by him, to wit: the presence of a gun shot wound on the occipital area of Jojo Mapalo's brain measuring one (1) cm. through and through, and a slug, recovered from beneath the skin on the right occipital region.[5]
(2) Ireneo S. Ordiano, Jr., a senior Ballistician of the National Bureau of Investigation, who deposed on the conclusions derived by him from his ballistic tests on the firearm recovered from Barros, its single round of live ammunition, three (3) slugs and three (3) empty shells, to wit: that the items possessed similar markings and that the bullets and shells were fired from the gun tested.[6]
(3) Julita de Villa, a forensic chemist of the NBI, who testified that she conducted a paraffin test on the person of Barros and found both his hands positive for gun powder nitrates.[7]
(4) Capt. Joffrey E. Palalay, Chief of Records, Legal and Research Branch, Firearms and Explosive Unit of Camp Crame, who had issued a formal certification to the effect that Romeo Barros was not the licensee of any kind and caliber of firearm, per verification from the records of his unit, said records containing a master list of all firearm licensees throughout the country.[8]
Proof of the damages suffered by the family as a result of Barros' slaying of Jojo Mapalo was also given by the mother, Lydia Mapalo.
In his defense, Romeo Barros posited a different version of the tragic event. On the witness stand, he asserted that on the date and time in question he was drinking with Reynaldo Gonzales and some other friends in front of the town plaza near the grocery of Gonzales in the course of which a heated discussion ensued about the number of votes their respective political candidates would garner by the end of the day. Suddenly, Reynaldo drew a gun and pointed it upwards. Knowing that it was illegal to carry a firearm publicly on election day, Barros grappled with Gonzales for possession of the gun. While they were thus engaged, the gun came to be pointed to the south of the road at which juncture it accidentally went off three times. Barros eventually succeeded in taking control of the weapon, left the place and went home. He placed the gun on the rooster pen, intending to surrender it to the police authorities; but the intended surrender was overtaken by events; before he could go to the police, the latater came and confiscated the firearm.
Reynaldo Gonzales was recalled to the stand, as rebuttal witness. He belied Barros' version of the incident. He denied that the pistol was his. He reiterated his earlier testimony that it was Barros who was in possession of the gun, that he saw Barros walk up the road, stop in front of his (Gonzales') house, raise his arm and discharge the firearm at the Mapalos' house.
On November 20, 1990, the Trial Court rendered a decision finding Barros guilty of the charges against him.[9] The dispositive portion reads:
"WHEREFORE, in view of all the foregoing considerations, this Court finds the accused Romeo Barros y Baltazar guilty beyond reasonable doubt for the crime of murder contrary to Art. 248 of the Revised Penal Code and of Illegal Possession of Firearm and Ammunition contrary to Section 1 of Presidential Decree No. 1866 as amended.The accused has appealed to this Court, insisting that his version of the occurrences is the truth and it was error for the trial court to convict him of the crimes charged. He reiterates his defense that there was no intention on his part to fire the gun in the direction of the Mapalos' residence; it accidentally discharged while he was grappling with Reynaldo Gonzales for its possession. He asserts that the gun is not his, that he took it away from Reynaldo because he knew it was illegal for Reynaldo or for him to be in the possession of any firearm on election day, and that he really meant to surrender the same to the police.
"For the crime of Murder, the accused ** is hereby sentenced to suffer the penalty of Reclusion Perpetua and to indemtify the heirs of the deceased Joseph Mapalo for actual damages in the total amount of P35,000.00; moral damages for P150,000.00; exemplary damages of P20,000.00; Attorney's fees of P20,000.00 and to pay the cost.
"For the crime of Violation of Section 1 of Presidential Decree No. 1866, the penalty should be that of paragraph 2 thereof considering that Murder was committed with the use of unlicensed firearm. Under paragraph 2 of Section 1 of P.D. No. 1866 the penalty imposable is death. However, since the death penalty has been abolished under the New Constitution, the penalty hereto lower in degree to that of the death penalty which is reclusion perpetua, should be imposed. The accused is therefore hereby sentenced to suffer the penalty of Reclusion Perpetua for the crime of Violation of Section 1 of Presidential Decree No. 1866 and to pay the cost.
"The firearm and ammunition seized from the accused are forfeited in favor of the government.
SO ORDERED."
The appeal must fail.
The Court rejects this tale supported by naught but appellant's bare word. Against the testimony of the three witnesses who positively pointed to him as the person who intentionally fired his gun in the direction of the Mapalo residence namely, Mariden Milades, Isabelo Gonzales, Reynaldo Gonzales appellant's uncorroborated story that the gun had accidentally been discharged as he was wrestling with Reynaldo for its possession, cannot prevail. Not only are the declarations in Court of said three (3) witnesses untainted by any material self-contradiction or other serious flaw, and entirely consistent with one another, but the Court also perceives no reason whatever for any one of them to testify falsely against appellant Barros.
There is yet another reason why appellant's version of the shooting is difficult to accept, and that is, that it was made public only when he testified in Court in his deffense. He claims, to be sure, that he had told his story the CLAO lawyers now representing him. He does not however explain why he did not disclose it to his first lawyer, Atty. Arthur Galace, or to any of the police officers when he was taken into custody or at any other time afterwards. If his story of the accidental discharge of the firearm were true, the Court sees no rational explanation for Barros' reticence in revealing it to the authorities or his lawyer. Indeed, its immediate divulgence would have been the natural, expected reaction of an innocent individual wrongly suspected of a killing. All things considered, his story appears to be a last-minute attempt to exculpate himself by ventilation of a contrived and seemingly plausible explanation for the death of Jojo Mapalo.
The Court however cannot see its way clear to upholding the Trial Court's conclusion that the killing was attended by the qualifying circumstances of treachery and evident premediation.
It is elementary that alevosia, to be appreciated, must be proved as clearly as the alements of the crime or crimes it is alleged to qualify. It must be proved that the accused had consciously and deliberately employed a form of attack to ensure the consummation of his objective without risk to himself from any defense the person assaulted could have made.[10] Under the established circumstances, it could not be said that Barros had deliberately adopted a manner of attack which would ensure the execution of the crime without risk to himself from any measures which his intended victim might take. Barros was in the middle of the road, in broad daylight, when he discharged two (2) volleys of three (3) shots each in the direction of the Mapalos' residence. The first three shots -- none of which hit any person already placed Jojo Mapalo, his sister and his mother on their guard; in fact, Jojo had remarked to his mother at the time that they were probably the targets of the pistol shots. They could have taken steps to protect and defend themselves; actually, they saw Barros re-loading his gun and aiming it at their house again before discharging it at them a second time. Unfortunately, Jojo Mapalo was apparently a little late in taking cover, and was hit in the head by one of the bullets.
Neither may this Court appreciate the qualifying circumstance of evident premeditation against appellant. As with alevosia, evident premeditation must be established with as much certainty and clarity as the criminal act itself. It is necessary to prove (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act.[11] While the existence of the first and third requisites appear to have been adequately proven, there is some ambivalence in the proof about the second, there being no substantially appreciable interval of time between the first and second groups of shots directed at the Mapalos' house, such that the discharge of those two volleys within a minute or two of each other might be considered as only one continuing event. In any event, even if the existence of all the elements of evident premeditation is conceded, it still cannot be appreciated against appellant for the reason that the actual victim was different from the intended one. It "is settled that evident premeditation cannot be appreciated in a case where, although the accused had planned the perpetration of the killing, the victim was different from the person whom the accused had originally intended to kill (See Aquino, the Revised Penal Code, Vol. 1, 1976 ed., p. 341, citing cases)."[12]
Now, appellant was also convicted by the Trial Court of illegal possession of firearm, in its aggravated form.[13] The evidence does convincingly prove that appellant is not a licensee of any firearm or ammunition and that Jojo Mapalo was slain with the unlicensed firearm in question. However, appellant may not in the premises be convicted of two separate offenses, but only of that of illegal possession of firearm in its aggravated form, in light of the legal principles and propositions set forth in the separate opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included, subscribe.
The indemnity for death awarded by the Trial Court should be increased from P35,000.00 to P50,000.00, conformably with prevailing doctrine.
WHEREFORE, the Trial Court's judgment in Criminal Case No. A1381, convicting said appellant of the offense of murder, is SET ASIDE. The judgment of the same Trial Court in Criminal Case No. A-1389 sentencing appellant Barros to reclusion perpetua for the crime of illegal possession of firearm in its aggravated form, and decreeing the forfeiture in favor of the government of the firearm and ammunition seized from the accused, is AFFIRMED, and in addition, the appellant is ORDERED to pay the heirs of the victim the amounts of damages awarded by the Trial Court except that of the death indemnity, which is increased to P50,000.00.
SO ORDERED.
Regalado, Puno, and Mendoza, JJ., concur.
[1] TSN, November 2, 1988; pp. 3-6
[2] Records, Exh. A-1
[3] Rollo, pp. 36-37
[4] Branch 32, Hon. Leo M. Rapatalo presiding.
[5] See Records, Exh. A-1
[6] See Records, Exh. F-3
[7] See Rollo, P. 35
[8] See Records, Exh. P
[9] Rollo, pp. 27-59
[10] People v. Amaguin, 229 SCRA 166; People v. Ocana, 229 SCRA 341; People v. Salveron, 228 SCRA 92; People v. Guadran, 228 SCRA 583
[11] People v. Lug-aw, 229 SCRA 308; People v. Cardova, 224 SCRA 319; People v. Balatucan, 206 SCRA 81
[12] People v. Dueño, 90 SCRA 23, 37, citing Peo. v. Mabug-at, 51 Phil. 967 (1926), Peo. v. Guevarra, L-24371, April 16, 1968, 23 SCRA 58; Peo. v. Guillen, 85 Phil. 307, 318-319 (1950), Peo. v. Umali, 96 Phil. 185, 201 (1954).
[13] People v. Caling, G.R. No. 94784, May 8, 1992; People v. Arce, 227 SCRA 406