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G R No L57893 — Volkswagen Brasilia

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G.R. No. L-57893#9;January 30, l987

OF THE PHILIPPINES, plaintiff-appellee,

vs.

ELPIDIO alias PEDY, accused-appellant.

J.:

This is an appeal from the dated May 7, 1981 of the then of First Instance of Cebu, 1 the accused Elpidio Obenque, Pedy guilty beyond doubt of the crime of murder and him to suffer the penalty of Reclusion with all the accessory penalties by law, and to pay the heirs of the deceased, Cabradilla, the sum of P12,000.00 without imprisonment in case of insolvency, and to pay the (Rollo, pp. 6-23).

It appears the records that at about o’clock in the evening of January 18, a group composed of Victor the deceased Sergio Cabradilla, Resma, Jose Hortel, Empacis, Titong Cabillon and Ely Boy were walking along Avenue, Minglanilla, Cebu, on way to Linao where they (TSN, June 5, 1979, pp. 75).

It was already 11:30 when they were the house of accused Elpidio at Lipata, Minglanilla. Victor and Sergio Cabradilla were their five companions at a of twenty-five (25) meters ( . pp. 16-17). as they approached the of accused Obenque, he came out of the of his residence allegedly to check the in The street. Sergio greeted the Good evening, Noy, and the answered: Good evening, After the exchange of greetings, walked towards the group Sergio Cabradilla and Victor followed the accused and when the reached the group, Sergio and Villarin were about (4) meters away. Accused scolded the whole group and Nganong nagabusar mo denhi? are you so abusive here?) The accused to scold them particularly Ely Boy ( Ibid . pp. 19-31, 89-90).

they were being the deceased Sergio Cabradilla for forgiveness from the accused Pasayloa lang mi Noy, di usbon (Please, forgive us, we’ll not repeat it. The accused did not but continued scolding all of them. The Sergio continued to ask forgiveness for five (5) times on behalf of the ( Ibid. . pp. 31-33).

However, the Obenque, with a pistol in his which was later Identified to be a .45 from shells recovered the scene of the crime, fired two into the air. Except for Villarin who was scared and Sergio who tried to talk to the accused by once more for forgiveness the slowly dispersed ( Ibid . pp.

At this juncture, the accused, who was infuriated, fired a third aimed pointblank at the forehead of Cabradilla ( Ibid . pp. 37-39, The victim fell down and instantly. The accused continued to around Victor Villarin to help his fallen companion but the pointed the gun at him asking: Dill ka Laban ka ba? (Are you going to run or to him?) Upon hearing Villarin ran away ( Ibid . pp.

Meanwhile, the other members of the arrived at their respective in Linao. After twenty-five the six companions of the victim together the victim’s four brothers, to the scene of the incident to retrieve the body ( Ibid. . pp. 45-46). they found nothing except traces of human and the slippers of the Victim’s on the exact where the group had been by the accused. They searched the locality of Linao. The victim’s also inquired from all the in Minglanilla as well as in Cebu but the body could not be found ( . pp. 47-48).

The following day, 19, 1978, Villarin reported the incident to the Office of the Station Minglanilla, Cebu. Pat. P. Basabe was assigned to investigate the (TSN, pp. 49-50, June 5, TSN, p. 30, June 6, 1979). Villarin pointed to the accused as the assailant of the deceased (TSN, p. 52, 5, 1979). The mother and relatives of the likewise reported the incident to the of the Station Conmmander (TSN, pp. June 6, 1979). It appears from the records that a Pat. Arturo Larrobis to the scene of the crime at about o’clock midnight on January 18, and turned over to Pat. three (3) empty shells of (TSN, p. 7, June 6, 1979).

the police of Minglanilla received that the body of a dead man was at Carcar, Cebu (about 60 from the scene of the incident) pp. 8-9, June 6, 1979). Basabe, Villarin, relatives of the and a photographer proceeded immediately at 3:00 o’clock in the afternoon of 19, 1979 to Tanauan Carcar, to investigate the body of the dead man who was in a deep ravine of about 200 (TSN, pp. 52- 54, June 5, 1979; pp. 10-12, June 6, 1979). Villarin and Pat. Basabe the body to be that of Sergio (TSN, p. 58, June 5, 1979; p. 15, June 6, 1979).

The body of Cabradilla was brought back to by the Cosmopolitan Funeral Parlor pp. 6667, June 5, 1979). on, an autopsy was performed on the victim’s by Dr. Ceferino Y. Cunanan, the National of Investigation (NBI) Medico-Legal for Visayas and Mindanao (TSN, p. July 16, 1979). A necropsy prepared by Dr. Ceferino Cunanan February 6, 1979 stated others that the cause of of Sergio Cabradilla was a gunshot in the head (Exhibit G, p. 3, Folder of

On January 21, 1978, at about a.m. the accused, Elpidio surrendered to the Philippine Constabulary authorities (Exhibit T, p. 18, Folder of

On January 23, 1978, M/Sgt. V. Villaremo, officer-in-charge of the Investigation Headquarters, INP, Cebu PC, was by Capt. Cabigon to Minglanilla to up the Brasilia car with Plate No. belonging to the accused (TSN, pp. July 18, 1979) which was on January 19, 1978 to the police An ocular inspection of the tangerine rug the car showed that there blood stains. A laboratory of the blood stains on the rug performed by P. Areola, Forensic Chemist, PC, that the spots on the rug were blood (TSN, pp. 9-13,15-16, 18, 1979; Exhibit V, p. 20, Folder of

For that killing, Elpidio alias Pedy, was charged the crime of murder in an information April 5, 1979, and amended on May 11, with the then Court of Instance of Cebu. The amended reads as follows:


The undersigned lst Provincial Fiscal of Cebu, the information for murder filed the above-named accused dated 5, 1979, charges the said for murder committed as follows:

on the 18th day of January, 1978, at o’clock in the evening, more or in the sitio of Lipata, Barangay Municipality of Minglanilla, Province of Philippines and within the jurisdiction of Honorable Court, the above-named with deliberate intent to by means of treachery, did then and wilfully, unlawfully, and feloniously Sergio Cabradilla with an caliber .45 pistol hitting him at the 1. 1 cms. to the left of the anterior line, directed backwards, and medially to the right and making an located at the scalp at a point 5.5 medial and 13.5 cms. the right external auditory causing the instantaneous death of Cabradilla.

That, after shooting to death Sergio the accused Elpidio Obenque Pedy in the furtherance of his criminal loaded the dead body of his in his Volkswagen Brasilia Sedan Plate No. B-EE 164 series of and with utmost cruelty, the corpse in a ravine 200 meters more or less, at Tanauan, Cebu, 60 kms. more or from the place of the incident at (CFI Original Record, 1, pp. 17- 18).

In the meantime, accused filed on April 26, 1979 a for bail which was opposed on May 2, by the prosecuting fiscal (CFI Record, Vol. 1, pp. 5-8).

On 20, 1979, the trial court the petition for bail of the accused Original Record, Vol. I, p.

A motion for reconsideration of the June 20, order was filed on June 28, (CFI Original Record, I, p. 68), and the prosecuting fiscal his opposition to said motion on 1, 1979 (CFI Original Vol. I, p. 78).

On August 24, the trial court denied the for reconsideration (CFI Original Vol. I, pp. 160-161).

It appears likewise that on 27, 1979, the accused thru filed a motion to quash recall the warrant of arrest issued by the trial court on May 14, (CFI Original Record, I, p. 100). On August 13, 1979, the fiscal filed his opposition to motion, and a supplemental motion manifestation was filed on August 21, by the counsel of the accused (CFI Record, Vol. I, pp. 118 and 133). Thereafter, or on September 3, 1979, the court denied the motion to (CFI Original Record, I, pp. 177-181).

The records also that the accused, thru his filed on September 26, 1979 the Supreme Court a petition for of habeas corpus, certiorari, with writ of preliminary dated September 24, 1979, as G.R. No. 51526, seeking, others, to direct the Jail of the Provincial Jail of Cebu to the body of the accused or to order the release of the accused, to restrain the court from proceeding the trial of Case No. 4417 the accused, to set aside the September 3, order of the trial court and to the case (Rollo of G.R. pp. 1-14).

In a Resolution dated 16, 1979, the Supreme Court Division, resolved to dismiss the for lack of merit (Rollo of 51526, p. 116).

The accused, as therein, moved to reconsider the resolution on January 1, 1980 but the was denied on January 23, 1980 of G.R. 51526, pp. 137 and 142).

of judgment was made on February 22, and on March 20, 1980, the case was to the court a quo (Rollo of G.R. p. 145).

During the arraigrnment on 5, 1979, accused Elpidio entered his plea of not guilty p. 27; CFI Original Record, Vol. 1, p. 29; p. 5, June 5, 1979).

After the lower court rendered its dated May 7, 1981 and promulgated on May 15, the dispositive portion of which

WHEREFORE, based on all the foregoing the Court finds and declares the ELPIDIO OBENQUE alias GUILTY, beyond reasonable of the crime of murder which is the offense defined and penalized by 248 in relation to Article 61, both of the Penal Code and considering the of a mitigating circumstance which is surrender and applying the provisions of the Sentence Law (Act 4103), as he is hereby sentenced to suffer the of RECLUSION PERPETUA, with the provided by law and to indemnify the heirs of the Sergio Cabradilla the sum of (P12,000.00), subsidiary imprisonment in case of and to pay the costs.

SO ORDERED. (Rollo, pp.

From the aforesaid judgment, Obenque filed on July 17, a notice of appeal dated 4, 1981 to the Court of Appeals on questions of fact and of law (Rollo, p.

On September 3, 1981, the records of the were forwarded to the Supreme because the penalty imposed the accused is Reclusion Perpetua p. 1).

In his appellant’s brief, accused Obenque assigned the following

I.#9;THAT THE COURT A QUO ERRED IN AND DECLARING THAT THE ACCUSED IS BEYOND REASONABLE DOUBT OF THE CHARGED BASED ON INSUFFICIENT EVIDENCE.

II.#9;THAT THE COURT IN FINDING THAT THE ACCUSED OBENQUE IS THE VERY PERPETRATOR OF THE

III.#9;THAT THE FINDINGS OF THE TRIAL AS TO THE QUALIFYING CIRCUMSTANCES OF MURDER ARE INCONSEQUENTIAL.

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IV.#9;THAT THE TOTALITY OF THE FOR THE PROSECUTION DOES NOT OVERCOME THE PRESUMPTION OF INNOCENCE.

V.#9;THAT THE OF THE TRIAL COURT DOES NOT TO THE MATERIAL AND RELEVANT EVIDENCE. p. 55; Brief for the Appellant, p. 1)

The issues in the instant proceeding can be reduced two, as follows:

1.#9;Whether or not the court erred in finding the guilty beyond reasonable of the crime of Murder based on circumstantial evidence.

2.#9;Whether or not the circumstances of evident premeditation and can be considered against the accused.

The claims that the trial relied only on circumstantial for his conviction. The claim is not meritorious he was clearly and positively Identified by the witnesses as the assailant. For one, Victor Villarin actually saw the fire at the victim Sergio (TSN, June 5, 1979, p. 37; H, Folder of Exhibits, p. 4). Nobody, the accused, confronted the members of the of the deceased Sergio Cabradilla the time of the shooting. It is undisputed the accused came down his house on that fateful to investigate the group that was noise in the street (TSN, 16, 1980, p. 67). He was so angry he confronted the group and even the members (TSN, October 16, p. 91).

When the accused two successive shots into the the members of the group, except and the victim, dispersed and ran away for (TSN, June 5, 1979, p. The third shot was aimed at the victim who was barely a meter from the accused (TSN, 5, 1979, p. 37). The shot at the was so sudden that the latter had no to defend himself. Sergio was actually talking and apologizing for the of the members of his group when he was fired upon by the acccused June 5, 1979, pp. 36-37).

The reveal that the accused a .45 cal. pistol as gleaned the three empty shells from the scene of the crime, also confirm the number of he had fired that night June 5, 1979, pp. 36-37).

The of Victor Villarin, pointing to the as the perpertrator of the crime, was made in a and forth-right manner, and is afirmed by his statement made on the day following the January 19, 1978, in the office of the Commander (Exhibit H, Folder of pp. 4-5). lwphl@itз

Furthermore, Jose Hortel, eye-witness to the incident, gave a statement to the effect that the fired to successive shots in the after which he pointed his gun at the of the group, and when the gun was aimed at the gun suddenly fired and Sergio This sworn statement of Hortel was given on the day following the on January 19, 1978, when forces were not yet exerted him and his only motive was to tell the (See Exhibit I, I-translation, of Exhibits, pp. 6-8). It appears, that on March 20, 1979 or (14) months after the Jose Hortel made a exculpating the accused, which the court did not consider because it was suspicious (See Rollo, p. 20; CFI p. 15). It is generally said retraction of witnesses must be warily (People vs. Lao Wan Sing, 125 45 [1983]).

Therefore, the positive made by Victor Villarin and Hortel of the accused Obenque as the of the crime cannot be overcome by the denial of the accused himself and witnesses, Vicente Oberes and Deiparine, who stated that the came from the group but Identifying who fired the gun. The Identification of the accused by the witnesses he killed the victim establishes the of the accused to a moral certainty vs. Demeterio, 124 SCRA 914 [1983]; vs. Cunanan, 75 SCRA 15 [1977]).

Obenque contends also the prosecution should have Jose Hortel to corroborate the of Victor Villarin, instead of relying on his sworn statement before the police.

The contention is merit. The matter of presenting for the People is a prerogative of the prosecuting In the instant case, there was no to present Jose Hortel the testimony of Victor Villarin was clear, sufficient and convincing. it has been held that the of a single witness, if credible and and if it satisfies the court beyond doubt, is sufficient to convict vs. Vengco, 127 SCRA 242 [1984]; vs. Martinez; 127 [1983]). Likewise, the of evidence is not necessarily determined by the of witnesses but the quality of testimony vs. Pascual, 127 SCRA 174 [1984]).

premeditation was not present in the commission of the To properly appreciate evident it is necessary to establish with as clear as the evidence of the crime (1) the time when the offender to commit the crime; (2) an act manifestly that the culprit had clung to his and (3) a sufficient lapse of time the determination and the execution to allow him to upon the consequences of his act (People vs. 129 SCRA 539 [1984]; People vs. 122 SCRA 123 [1983]; People vs. 115 SCRA 688 [1982]). In the case at the prosecuting fiscal failed to the aforesaid requisities. BEsides, is no showing that the accused had to kill the victim Sergio

However, it is clear that attended the commission of the crime and it to murder. Attendance of treachery as a circumstance is founded upon the of two (2) conditions, to wit: (1) the employment of method, or manner of execution would insure the offender’s from any defensive or retaliatory act on the of the offended party, which that no opportunity is given the to defend himself or to retaliate; and (2) such means, method, or of execution was deliberately or consciously (People vs. Ganut, 118 SCRA 35 It has been proven that the act of for forgiveness from the accused The shooting of the victim was so sudden the latter had no opportunity to defend Treachery is present in case the is sudden and unexpected (People vs. 119 SCRA 204 [1982]).

Finally, Obenque admitted that the Brasilia car brought to the PC Headquarters in belonged to him. Just the victim was shot, his body was from the scene of the incident and in a ravine at Tanauan, Carcar, which is about sixty kilometers away from the of the crime. A laboratory examination of the rug inside the Brasilia car of the accused by Myrna Areola, Forensic of the PC, showed that the blood on the car’s rug were those of a being. Evidently, the accused to load the dead body of his into his Brasilia car and dumped it a ravine 200 feet deep at Carcar, Cebu in order to the effects of his criminal act. actuation of the accused Elpidio in dumping the body of his victim an outrage or scoffing at the corpse of the which is another qualifying in the commission of the crime of murder.

CONSIDERED, the judgment of conviction is AFFIRMED, with the modification the civil indemnity is hereby to P30,000.

SO ORDERED.

Fernan Alampay, Gutierrez, Jr. Padilla and JJ. concur.

Footnotes

1#9;Penned by Jose Ramolete.

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