Contrary to physical evidence

This is the story of Danny who hails from a remote barangay in the Visayas. He was one of those accused of murder in connection with the shooting incident that happened at a dance party to celebrate the eve of the barangay fiesta. Also charged together with him were Larry, Felipe, Randy and Manny. They were accused of murdering Emerito, the group leader of the Civilian Volunteer Organization (CVO) in their place, with the use of firearms of different make. After trial, only Danny and Felipe were convicted mainly on the basis of the eyewitness testimony of Andy who belongs to the CVO headed by the victim. The trial court relied on Andy’s declaration over the alibi of Danny who said he was nowhere near the place of the shooting when it happened.

According to Andy, their CVO group were on patrol about half a kilometer away from the dance hall when they heard a shot coming from the place of the celebration. Led by the victim Emerito, they proceeded to the place. Somebody pointed to Larry who was then sitted at the entrance of the dance floor as the one who fired the shot. So they approached Larry and confiscated his gun. On the way back to their detachment with Larry in tow, the latter prevailed upon Emerito to return to the dance hall and settle the matter among themselves. Thus they returned to the place with Emerito and Larry walking abreast while he was behind them about one arm’s length from Larry. Upon reaching the dance hall, Andy said that he saw Felipe and Danny with Randy and Manny close behind. Felipe was armed with a pistolized twelve (12) gauge short firearm while Manny had a .20 caliber short firearm. Danny and Randy were also armed but he did not recognize their caliber. Then he saw Danny and Felipe raise their firearms aimed at them. Instinctively he dropped to the ground. As he heard gunshots, he said he fired back but did not hit anyone. Then the smoke of battle cleared, he noticed Emerito lying dead on the ground face up with one gunshot wound. He did not actually see if it was Felipe or Danny who shot the victim because he was already on the ground face down. But he was sure they both fired their respective weapons although no other spent bullets were found near the crime scene.

The other co-accused, Manny, Randy and Larry, admitted that they were at the dance hall but denied they were together at the dance, had firearms and participated in the shooting. They said that they only heard one gunshot and learned from people around that Emerito was shot dead. They were acquitted by the trial court for lack of proof beyond reasonable doubt. But Danny and Felipe were sentenced to suffer the penalty of reclusion perpetua.

Both Danny and Felipe appealed their conviction. But pending appeal, Felipe died. So only Danny pursued his appeal. He said that the trial court erred in giving credence to the testimony of Andy since he did not actually see who shot the victim. He pointed out that the victim suffered only one gunshot wound and other witnesses heard only one shot contrary to Andy’s claim that both he and Felipe fired their guns at the victim.

Was he correct?

Yes.

The trial court misapprehended certain facts and failed to consider significant portions of the testimony of witnesses. First, it failed to consider Andy’s testimony that he did not actually see who shot the victim. This at once creates an ambiguity and causes doubt as to who really killed the victim. This doubt is exacerbated by the physical evidence showing that the victim suffered only one gunshot wound. This physical evidence reveals that only one shot resulted in the death of the victim. This evidence contradicts the testimony of Andy to the effect that both Danny and Felipe fired their guns. Moreover, the prosecution failed to show that spent bullets were found near the crime scene that would indicate that more than one shot were fired at the victim. It follows that only one gun and one gunman firing at the victim killed him with one bullet. Who this gunman is – whether it is Danny or Felipe – has not been ascertained. Nor could it now be determined beyond a shadow of doubt. Where the physical evidence on record runs counter to the testimonial evidence, the physical evidence prevails.

The trial court’s finding of conspiracy between Danny and Felipe is also not supported by evidence. Mere simultaneous aiming by Danny and Felipe at the victim does not by itself demonstrate concurrence of will or unity of action or purpose that could be the basis of their collective responsibility. It cannot be surmised that conspiracy existed just because Danny and Felipe were both seen raising their arms and aiming at the victim. Conspiracy as a basis for conviction of Danny should be proved in the same manner as the criminal act. It must be shown as clearly as the commission of the offense itself. The evidence of the prosecution only proves with certainty that Danny was present when the victim was killed. It does not prove beyond doubt who killed him. There is paucity of evidence that indicate beyond scintilla of doubt that Danny and Felipe shared a common design and unity of purpose in killing the victim so as to make both responsible by reason of a conspiracy. Danny should therefore be acquitted. (Pp vs. Loreno et.al. G.R.130889, June 6, 2002).

* * *

My e-mail address: <[email protected]>