Case Digest: People vs. Dianos, G.R. No. 119311, October 7, 1998
Recit Ver:
Romeo Dianos has appealed the decision of the RTC-Baguio City, which convicted him of two counts of murder, one count of frustrated murder, and two counts of attempted murder from incidents that occurred on December 31, 1990, in Cypress Point Village, Irisan, Baguio City, involving multiple victims.
Charges: Five criminal cases (8524-R to 8528-R) involving:
Criminal Case No. 8524-R (Murder):
Victim: Teresita Ortiz
Cause: Gunshot wound to the neck, leading to acute respiratory failure.
Aggravating circumstances: Nighttime and use of a motor vehicle.
Criminal Case No. 8525-R (Attempted Murder):
Victim: Zaldy Ortiz
Injury: Gunshot wound to the right leg.
Criminal Case No. 8526-R (Attempted Murder):
Victim: Virgilio Ortiz
Injury: Gunshot wound to the thigh.
Criminal Case No. 8527-R (Frustrated Murder):
Victim: Lizette Ortiz
Injuries: Gunshot wounds to the abdomen and wrist; required 33 days of hospitalization.
Criminal Case No. 8528-R (Murder):
Victim: Ricardo Pablo
Cause: Gunshot wounds causing hypovolemic shock and massive hemorrhage.
On the morning of December 31, 1990, Dianos allegedly threw a grenade near the house of Josie Ortiz Santos, injuring her leg.
Later that evening, he was seen wearing military camouflage and carrying an M-16 rifle. Witnesses testified that he struck Ricardo with the butt of the rifle before shooting him.
He then fired at the Ortiz family members, killing Teresita and Ricardo and injuring Virgilio, Zaldy, and Lizette.
Dianos denied involvement and claimed he was coerced by two armed men to drive his jeepney to the scene, where he allegedly witnessed the crimes but did not participate. He further claimed that he attempted to report the incident to the police but was met with gunfire, sustaining a thigh injury in the process.
Damages Incurred by Private Complainants:
Virgilio Ortiz:
₱1,000 – medications for his thigh injury
₱14,000 – lost income due to inability to work for seven months as a riprap contractor (₱2,000/month)
₱110,000 – funeral expenses for his wife, Teresita.
Nenita Pablo (for Ricardo):
₱15,000 – autopsy and coffin.
₱3,000 – doctor’s fees.
₱8,000 – wake.
Zaldy Ortiz:
₱500 – treatment of his injury.
RTC:
Criminal Case No. 8524-R (Murder of Teresita Ortiz)
Sentence: Reclusion Perpetua.
Indemnity: ₱50,000 for death, ₱110,000 for funeral expenses.
Criminal Case No. 8525-R (Attempted Murder of Zaldy Ortiz)
Sentence: 1 year, 7 months, 11 days (prision correccional) to 6 years, 1 month, 11 days (prision mayor).
Indemnity: ₱5,000 as moral damages.
Criminal Case No. 8526-R (Attempted Murder of Virgilio Ortiz)
Sentence: 1 year, 7 months, 11 days (prision correccional) to 6 years, 1 month, 11 days (prision mayor).
Indemnity: ₱1,000 for medical expenses, ₱14,000 for lost income, ₱5,000 as moral damages.
Criminal Case No. 8527-R (Frustrated Murder of Lizette Ortiz)
Sentence: 6 years, 1 month, 11 days (prision mayor) to 12 years, 5 months, 11 days (reclusion temporal).
Indemnity: ₱20,000 as moral damages.
Criminal Case No. 8528-R (Murder of Ricardo Pablo)
Sentence: Reclusion Perpetua.
Indemnity: ₱50,000 for death, ₱23,000 for funeral expenses.
Credibility of Witnesses
Accused-appellant faults the court for favoring prosecution witnesses while disregarding defense witnesses.
He questions the credibility of prosecution witnesses due to their relationship with the victims.
Court emphasizes that familial relationship does not impair credibility unless ill-motive is proven.
No ill-motive was shown; prosecution witnesses’ testimonies were deemed credible.
Res Gestae
Accused-appellant argues his statements to Sgt. Gallardo and Pat. Ayochok should qualify as res gestae and hold evidentiary value.
Court clarifies res gestae pertains to admissibility, not evidentiary weight, and must meet specific conditions:
The act is a startling occurrence.
Statements are spontaneous, not contrived.
Statements directly relate to the occurrence.
The statements cited by the appellant did not meet these criteria and were not part of the relevant incident.
Paraffin Test Results
Accused-appellant highlights negative paraffin test results as evidence of innocence.
Court notes the paraffin test is unreliable and not definitive proof of non-involvement.
Factors like washing hands, wearing gloves, or environmental conditions could affect results.
Damages Awarded
Deletes actual damages due to lack of supporting evidence. Actual damages require proof of pecuniary loss.
Moral, nominal, and civil indemnity damages need proof of harm but no specific monetary evidence.
Awards nominal damages:
₱15,000.00 in Criminal Case Nos. 8524-R and 8528-R.
₱10,000.00 in Criminal Case No. 8527-R.
₱5,000.00 in Criminal Case Nos. 8525-R and 8526-R.
Moral damages of ₱30,000.00 for each deceased victim.
Civil indemnity of ₱50,000.00 for each deceased victim per prevailing jurisprudence.
Clarification on Types of Damages
Damages: Monetary compensation awarded for harm.
Damage: Harm or loss caused by an unlawful act.
VITUG, J.:
Romeo Dianos has taken an appeal to this Court questioning the decision of the Regional Trial Court of Baguio City, Branch 6, which has found him guilty beyond reasonable doubt of the crimes of Murder, Frustrated and Attempted Murder, after being indicted and tried in Criminal Cases Numbered 8524-R to 8528-R, inclusive. The five separate informations against him read:
Criminal Case No. 8524-R
The undersigned accuses ROMEO DIANOS and "JOHN DOE" of the crime of MURDER, committed as follows:
That on or about the 31st day of December, 1990, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, conspiring, confederating and mutually aiding with each other, did then and there wilfully, unlawfully and feloniously attack, assault and fire at TERESITA ORTIZ y PABLO, with an armalite rifle, causing upon the latter, acute respiratory failure due to a complete transection of the spinal cord at the level of the 2nd cervical vertebra due to a gunshot wound through the neck, which directly caused her death.
ALL CONTRARY TO LAW, and with the aggravating circumstances of nighttime and use of motor vehicle.
Criminal Case No. 8525-R
The undersigned accuses ROMEO DIANOS and "JOHN DOE" of the crime of ATTEMPTED MURDER, committed as follows:
That on or about the 31st day of December, 1990, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, conspiring, confederating and mutually aiding with each other, did then and there wilfully, unlawfully and feloniously attempt to kill ZALDY ORTIZ, by firing an armalite rifle, causing injuries on his right leg, thus commencing the commission of the crime directly by overt acts, but did not perform all the acts of execution which should have produced the crime of Murder, by reason of causes other than their own spontaneous desistance.
ALL CONTRARY TO LAW, and with the aggravating circumstances of nighttime and use of motor vehicle.
Criminal Case No. 8526-R
The undersigned accuses ROMEO DIANOS and "JOHN DOE" of the crime of ATTEMPTED MURDER, committed as follows:
That on or about the 31st day of December, 1990, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, conspiring, confederating and mutually aiding with each other, did then and there wilfully, unlawfully and feloniously attempt to kill VIRGILIO ORTIZ Y PINLAC, by firing an armalite rifle, causing injuries on his thigh, thus commencing the commission of the crime directly by overt acts, but did not perform all the acts of execution which should have produced the crime of Murder, by reason of causes other than their own spontaneous desistance, that is, by the timely arrival of people from the neighborhood who extended assistance to the complainant.
ALL CONTRARY TO LAW, and with the aggravating circumstances of nighttime and use of motor vehicle.
Criminal Case No. 8527-R
The undersigned accuses ROMEO DIANOS and "JOHN DOE" of the crime of FRUSTRATED MURDER, committed as follows:
That on or about the 31st day of December, 1990, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, conspiring, confederating and mutually aiding with each other, did then and there wilfully, unlawfully and feloniously attack, assault and fire at LIZETTE ORTIZ, with an armalite rifle, thereby inflicting upon the latter, penetrating gunshot wound in her abdomen, which wound would have caused or led to the death of the said LIZETTE ORTIZ, were it not for the timely and able medical assistance extended to her, thus performing all the acts of execution which should have produced the crime of Murder as a consequence but nevertheless did not produce it by reason of causes independent of the will of the accused, that is, by the timely medical assistance rendered to said LIZETTE ORTIZ, which prevented her death.
ALL CONTRARY TO LAW, and with the aggravating circumstances of nighttime and use of motor vehicle.
Criminal Case No. 8528-R
The undersigned accuses ROMEO DIANOS and "JOHN DOE" of the crime of MURDER, committed as follows:
That on or about the 31st day of December, 1990, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery and evident premeditation, conspiring, confederating and mutually aiding with each other, did then and there wilfully, unlawfully and feloniously attack, assault and fire at RICARDO PABLO y PALUA, with an armalite rifle, causing upon the latter, hypovolemic shock secondary to massive hemorrhage due to penetrating wounds of the heart, lungs, aorta and pulmonary vessels due to multiple gunshot wounds on the chest, which directly caused his death.
ALL CONTRARY TO LAW, and with the aggravating circumstances of nighttime and use of motor vehicle.
At his arraignment, accused Dianos entered a plea of not guilty to all the charges. His co-accused remained at large.
The witnesses for the prosecution came up during the trial with accounts of the incidents brought up in the various accusations.
Involved in the unfortunate saga were all residents of Cypress Point Village, Irisan, in Baguio City. The otherwise friendly relationship among them was marred by a transaction apparently gone awry between Teresita Ortiz (Teresita) and Josie Ortiz Santos (Josie), on the one hand, and accused Romeo Dianos, on the other hand, over a piece of land occupied by the latter. The ensuing "bad blood" led to the fatal denouement.
On 31 December 1990, at about five o'clock in the morning, Nancy Ortiz Dasudas (Nancy) saw the accused throw a hand grenade near the house of her parents. Josie, who was standing near the site of the explosion was hit with a shrapnel on the left leg. A grenade pin and several shrapnels were recovered from the scene.
Later that day, at around 9:30 in the evening, the accused, donned in military camouflage uniform and armed with an M-16 armalite rifle, was seen traversing the Cypress Point Road. Following closely behind was his passenger jeepney with three unidentified men on board.
Meanwhile, that same evening, Teresita, together with her husband, Virgilio Ortiz (Virgilio), her daughter, Corazon Ortiz Ihanda (Corazon), her brother, Ricardo Pablo (Ricardo), and her son, Zaldy Ortiz (Zaldy), were on the terrace of their new house waiting for the other Ortiz children to arrive in time for the New Year's eve celebration.
The three men, Virgilio, Ricardo and Zaldy, momentarily left the terrace, Virgilio to relieve himself by the side of the house, Zaldy to repair home and Ricardo to go to the house of Nancy Ortiz Dasudas (Nancy) across the street. Ricardo met the accused near the waiting shed. Without any warning, the latter suddenly struck Ricardo on the face with the butt of an armalite causing him to fall to the ground. The accused then fired at Ricardo, hitting him on the chest and left arm. The accused then directed his armalite at Virgilio. The latter was hit on the buttocks. The accused thereupon fired indiscriminately at the house of Zaldy. Zaldy received a bullet injury in his right thigh, while his daughter, Lizette Ortiz (Lizette), was hit in her abdomen and wrist. The accused moved towards the direction of the new house and fired at the terrace. Teresita took a bullet wound on the neck from the volley of shots, while Corazon escaped unscathed.
The accused, right after the shooting, boarded his jeep and sped towards Baguio City.
In the aftermath, two were found dead, namely, Teresita and Ricardo, while three others, Virgilio, Zaldy and Lizette, sustained injuries. The latter were all rushed to the Baguio General Hospital where they were treated for gunshot wounds.
P/Sgt. Albert Gaydowen of Sub-station 1, upon receiving the report on the incident, immediately dispatched Pat. Ruben Forte (Pat. Forte), Pfc. Marianito Cosape (Pfc. Cosape) and Pat. Robert Credo (Pat. Credo) to the crime scene. Pfc. Cosape was able to gather several pieces of spent cartridges from the waiting shed and surrounding areas. At the police station, Sgt. Danilo Santos (Josie's husband) who tagged along with the investigating team from the crime scene, requested P/Sgt. Gaydowen to contact Camp Bado Dangwa to intercept the passenger jeepney of the accused. P/Sgt. Gaydowen was yet searching for the telephone number of Camp Dangwa when the accused's jeepney was seen near the sub-station coming in from Baguio City. It was promptly met with a burst of gunfire. Somehow, the accused was able to escape.
Meanwhile, Zaldy and Virgilio were discharged from the hospital shortly after treatment. Having sustained lacerations on her liver and large intestines, as well as multiple pilferages on her small intestines, Lizette had to be confined. The doctors who attended to her testified that the gunshot wound she had sustained were serious enough to cause her death had it not been for the immediate surgical and medical attention given to her. She also sustained a fractured wrist which would leave her left hand permanently disabled. She was treated for a total of thirty-three days in the hospital.
The post mortem report on the bodies of Teresita and Ricardo readily disclosed that their death were due to the gunshot wounds they had sustained. Teresita had gunshot wounds on her neck and right side of the face that caused an acute respiratory failure. Ricardo sustained gunshot wounds on his left chest and left upper arm. He died from hypovolemic shock secondary to massive hemorrhage due to penetrating wounds in the heart, lungs, aorta and pulmonary vessels.
Anent the damages incurred by private complainants:
Virgilio testified that he had spent P1,000 for medications for his thigh injury. A riprap contractor, he was not able to work for seven months depriving him of his monthly income of P2,000 for the period or the total amount of P14,000. He asserted that he had incurred P110,000.00 for funeral services for his wife Teresita. Nenita Pablo (Nenita) said in her testimony that she had spent P15,000.00 for the autopsy and coffin of Ricardo, P3,000.00, by way of doctor's fee and P8,000.00 for the wake. Zaldy testified that he had spent P500 for the treatment of his injury.
The accused proffered the jaded apologia of denial. He disclaimed any knowledge of, or participation in, the grenade throwing and shooting incidents. He recounted that while he was getting his passenger jeepney out from the carport, an unidentified man poked a gun at his back and instructed him to proceed to Cypress Point Road to fetch a companion. When they were near the waiting shed area, he saw the unidentified man's companion, a "military man," clad in military camouflage uniform and armed with an M-16 armalite rifle, altercating with Ricardo. Moments later, he saw the gun-wielding man shoot Ricardo and spray bullets at Zaldy's house and the "new" house before boarding the passenger jeepney. The accused was ordered to proceed to La Trinidad, Benguet, where the "military man" alighted from the vehicle. The other fellow got down from the vehicle in Puliwes Camp 7, Kennon Road. The accused proceeded to Sub-station 1 to report the incident but he was met with a burst of gunfire. Sustaining an injury in his thigh, he then drove to Sub-station 2 to seek police assistance. Sgt. Giovanni Gallardo (Sgt. Gallardo) and Pat. Edward Ayochok (Pat. Ayochok) took him to the St. Louis Hospital. On the way, the accused had the chance to narrate to the two police officers the shooting incident in Irisan.
The RTC rendered its decision on 10 May 1994 finding the accused guilty beyond reasonable doubt of the crimes with which he was charged; the trial court adjudged:
WHEREFORE, judgment is hereby rendered as follows:
1. In Criminal case No. 8524-R, the Court finds accused Romeo Dianos Guilty beyond reasonable doubt of Murder defined and penalized under Article 248 of the Revised Penal Code and hereby sentences him to Reclusion Perpetua; to indemnify the heirs of deceased Teresita Ortiz the sum of P50,000.00 for her death and the sum of P110,000.00 as Actual Damages for expenses incurred for the wake, funeral and burial services, both indemnifications being without subsidiary imprisonment in case of insolvency and to pay the costs.
The accused being a detention prisoner is entitled to a full credit of his preventive imprisonment in the service of his sentence.
2. In Criminal case No. 8525-R, the Court finds accused Romeo Dianos guilty beyond reasonable doubt of Attempted Murder defined and penalized under Article 248 in relation to Article 6 and Article 51 of the Revised Penal Code and hereby sentences him, applying the Indeterminate Sentence Law, to an imprisonment of 1 Year 7 months and 11 days of prision correccional as Minimum to 6 years, 1 month and 11 days of prision mayor as Maximum, to indemnify Zaldy Ortiz the sum of P5,000.00 as Moral Damages for the injuries sustained by him without subsidiary imprisonment in case of insolvency and to pay the costs.
The accused being a detention prisoner is entitled to a full credit of his preventive imprisonment in the service of his sentence.
3. In Criminal Case No. 8526-R, the Court finds accused Romeo Dianos guilty beyond reasonable doubt of Attempted Murder defined and penalized under Article 248 in relation to Articles 6 and 51 of the Revised Penal Code and hereby sentences him, applying the Indeterminate Sentence Law, to an imprisonment of one year, 7 months and 11 days of prision correccional as Minimum to 6 years, 1 month and 11 days of prision mayor as Maximum, to indemnify Virgilio Ortiz the sum of P1,000.00 as actual damages for the expenses incurred for his medical treatment for the injuries sustained by him and the sum of P14,000.00 as unearned income for 7 months at P 2,000.00 a month for being unable to work as riprap contractor during the treatment of his injuries and the sum of P5,000.00 as Moral Damages for the injuries sustained by him, both indemnifications being without subsidiary imprisonment in case of insolvency and to pay the costs.
The accused being a detention prisoner is entitled to a full credit of his preventive imprisonment in the service of his sentence.
4. In Criminal case No. 8527-R, the Court finds accused Romeo Dianos guilty beyond reasonable doubt of Frustrated Murder defined and penalized under Article 248 in relation to Articles 6 and 50 of the Revised Penal Code and hereby sentences him to an imprisonment ranging from 6 years, 1 month and 11 days of prision mayor as Minimum to 12 years, 5 months and 11 days of Reclusion Temporal as maximum, to indemnify Lizette Ortiz the sum of P20,000.00 as Moral Damages for the injuries sustained by her without subsidiary imprisonment in case of insolvency and to pay the costs.
The accused being a detention prisoner is entitled to a full credit of the preventive imprisonment in the service of his sentence.
5. In Criminal case No. 8528-R, the Court finds accused Romeo Dianos guilty beyond reasonable doubt of Murder defined and penalized under Article 248 of the Revised Penal Code and hereby sentences him to reclusion perpetua; to indemnify the heirs of deceased Ricardo Pablo the sum of P50,000.00 for his death and the sum of P23,000.00 as Actual Damages for expenses incurred for the wake, funeral and burial services, both indemnifications being without subsidiary imprisonment in case of insolvency and to pay the costs.
The accused being a detention (prisoner) is entitled to a full credit of his preventive imprisonment in the service of his sentence.
In the instant appeal, accused-appellant ascribes the following errors supposedly committed by the trial court:
I
. . . IN ITS CONCLUSION THAT "IF REALLY ACCUSED HAD NOTHING TO DO WITH THE FIRINGS AND KILLINGS, THE ASSAILANTS COULD VERY WELL USED OTHER VEHICLES" INSTEAD OF THE ACCUSED'S VEHICLE;
II
. . . [IN NOT TAKING] INTO CONSIDERATION THE VITAL AND VERY IMPORTANT EVIDENCE FOR THE ACCUSED (not a single portion of the testimonies of Police Officers Gallardo and Ayochok, as well as those of the prosecution's witnesses showing his lack of motive to perpetrate the offenses charged, were mentioned nor passed upon in the decision) WHICH IF CONSIDERED IMPARTIALLY COULD HAVE RESULTED IN HIS ACQUITTAL;
III
. . . IN COMPLETELY IGNORING THE VERY CONVINCING EVIDENCE PRESENTED BY THE ACCUSED AS WELL AS THOSE OF THE OTHER PROSECUTION WITNESSES THAT HE HAD NO MOTIVE TO PERPETRATE SUCH A DASTARDLY ACT AGAINST THE VICTIMS SINCE WHATEVER DIFFERENCES HIS FAMILY HAD WITH THEM HAD LONG BEEN SETTLED AND FORGOTTEN ACCORDING TO NO LESS THAN VIRGILIO ORTIZ, THE FATHER OF JOSIE SANTOS AND HUSBAND OF THE LATE TERESITA ORTIZ;
IV
. . . IN COMPLETELY ADHERING TO THE RULE THAT POSITIVE IDENTIFICATION PREVAILS OVER EVIDENCE OF LACK OF MOTIVE DESPITE THE FACT THAT THOSE WHO TESTIFIED AS HAVING POSITIVELY IDENTIFIED THE ACCUSED ARE BIASED, HOSTILE AND HIGHLY PREJUDICED TO HIM;
V
. . . IN HOLDING THAT THE PARAFFIN EXAMINATION RESULT IS NOT IMPORTANT BECAUSE THE ACCUSED MIGHT HAVE USED GLOVES OR KNOWS HOW TO REMOVE IT AND WASHED AWAY THE POWDER BURNS AND THAT "THE EXAMINATION WAS DONE ONLY ON JANUARY 2, 1991 OR TWO (2) DAYS AFTER THE INCIDENT; (AND)
VI
. . . IN HOLDING THAT IT IS "TOO MUCH TO BELIEVE" THAT ACCUSED WAS REALLY GOING TO REPORT THE INCIDENT WITH THE PNP SUBSTATION 1 OF BAGUIO CITY ALONG NAGUILIAN ROAD INSTEAD OF REPORTING THE SAME TO THE PNP HEADQUARTERS NEAR CITY HALL AND THAT SUCH ACT OF THE ACCUSED IS A MERE "PRETENSIONS" ON HIS PART."
Accused-appellant, verily, faults the court a quo for giving full faith and credit to the testimony of the prosecution witnesses, on the one hand, and, on the other, for failing to accord any evidentiary value to the testimonies of Sgt. Gallardo and Pat. Ayochok to whom he narrated the Irasan incident, and for disregarding the negative results of the paraffin test on him.
It is doctrinally entrenched, at least in this jurisdiction, that the issue on the credibility of witnesses is a question mainly addressed to the trial court for it to gauge and to pass upon. Not only are its determination and findings accorded with great respect, but also even often treated with finality. Accused-appellant belabors the fact that all, but one, of the prosecution witnesses are related to the victims. He asserts that such relationship taints their credibility. Mere relationship by a witness to the victim, however, does not necessarily impair credibility. The annals of our criminal justice system could be filled with countless unresolved cases if courts were to hold otherwise. Not too infrequently, crimes are committed with just the relatives of the victim being around. Verily, too, it is natural for the immediate members of the family of the victim to have a strong urge to see the real culprit, not just anyone, penalized for a grave offense. Unless the Court is convinced that the witnesses are clearly impelled by ulterior motives, it will not discard their testimony. No such strong ill-motive has been shown here to make the Court conclude that the prosecution witness would thereby wish to have the wrong man callously sent to jail.
Accused-appellant argues that his "utterances" made in the presence of, and later testified to, by Sgt. Gallardo and Pat. Ayochok on their way to the hospital should have been deemed constitutive of the res gestae and given due evidentiary weight. Evidently, accused-appellant is under a misconception. Res gestae rules relate to the admissibility of evidence and not to its weight or sufficiency. By res gestae, exclamations and statements made by either the participants, victims, or spectators to a crime, immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements constitute nothing but spontaneous reaction or utterance inspired by the excitement of the occasion there being no opportunity for the declarant to deliberate and to fabricate a false statement become admissible in evidence against the otherwise hearsay rule of inadmissibility. In order to admit such hearsay statements as part of res gestae, there must be a confluence of the following essential conditions:
(1) that the principal act, the res gestae, is a startling occurrence;
(2) the statements are made before the declarant had the time to contrive or devise a falsehood; and
(3) that the statement must concern the occurrence in question and its immediate attending circumstances.
There is, of course, no hard and fast rule by which spontaneity may be determined although a number of factors have been considered, including, but not always confined to, (1) the time that lapsed between the occurrence of the act or transaction and the making of the statement, (2) the place where the statement is made, (3) the condition of the declarant when the utterance is given, (4) the presence or absence of intervening events between the occurrence and the statement relative thereto, and (5) the nature and the circumstances of the statement itself. The Court, in People vs. Manhuyod, 14 has explained the import of the first four factors; thus:
. . . (C)ases are not uniform as to the interval of time that should separate the occurrence of the startling event and the making of the declaration. What is important is that the declarations were voluntarily and spontaneously made "so nearly contemporaneous as to be in the presence of the transaction which they illustrate or explain, and were made under such circumstances as necessarily to exclude the ideas of design or deliberation."
As to the second factor, it may be stressed that "a statement made, or an act done, at a place some distance from the place where the principal transaction occurred will not ordinarily possess such spontaneity as would render it admissible."
Anent the third factor, "[a] statement will ordinarily be deemed spontaneous if, at the time when it was made, the conditions of the declarant was such as to raise an inference that the effect of the occurrence on his mind still continued, as where he had just received a serious injury, was suffering severe pain, or was under intense excitement. Conversely, a lack of spontaneity may be inferred from the cool demeanor of declarant, his consciousness of the absence of all danger, his delay in making a statement until witnesses can be procured, or from the fact that he made a different statement prior to the one which is offered in evidence."
With regard to the fourth factor, what is to be considered is whether there intervened between the event or transaction and the making of the statement relative thereto, any circumstance calculated to divert the mind of the declarant which would thus restore his mental balance and afford opportunity for deliberation.
The startling occurrence of consequence to this case is not when accused-appellant was fired upon at police substation 1 but the shooting at the Cypress Point Village. If at all, what might be so considered as part of the res gestae would be the statements of appellant when he was shot at near the police station, but this incident is not at all the subject matter of the case against him. Clearly, the fourth element, i.e., that there is no intervening event between the startling occurrence concerned and the making of the statement relative thereto, is not here extant.
Accused-appellant capitalizes on the negative results of the paraffin test conducted on him. A paraffin test has never been considered to be foolproof. On the contrary, it has been held to be highly unreliable. In People vs. Teehankee, Jr., this Court has held:
Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans and alfalfa. A person who uses tabacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tabacco." In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of the firing.
Anent the actual damages, the uncorroborated testimonies of private complainants cannot suffice. Such damages to be recoverable must not only be capable of proof but must actually be proved with reasonable degree of certainty. In Fuentes, Jr. vs. Court of Appeals, the Court has ruled:
Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for P8,300.00 as actual damages on the basis of the mere testimony of the victim's sister, Angelina Serrano, without any tangible document to support such claim. This is a valid point. In crimes and quasi-delicts, the defendant is liable for all damages which are the natural and probable consequences of the act or omission complained of. To seek recovery for actual damages it is essential that the injured party proves the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available. Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.
The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have only the testimony of the victim's elder sister stating that she incurred expenses of P8,300.00 in connection with the death of Malaspina. However, no proof of the actual damages was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to have been genuinely expended in connection with the death of the victim. Since the actual amount was not substantiated, the same cannot be granted.
There is, however, no doubt that injury was sustained by private complainant due to appellant's actions. In the absence of competent proof on the specific amounts of actual damages suffered, private complainants are entitled to nominal damages. The Court deems the amounts of P15,000.00 in Criminal Case Nos. 8524-R and 8528-R, P10,000.00 in Criminal Case No. 8527-R, and P5,000.00 in Criminal Case Nos. 8525-R and 8526-R to be reasonable given the circumstances.
Finally, in accordance with prevailing jurisprudence relative to Article 2206 of the Civil Code, the award of P50,000.00 indemnity for each of the death of Teresita Ortiz and Ricardo Pablo must be affirmed. Moral damages, in addition to the awards made by the trial court in favor of the injured victims, are also recoverable under paragraph (3) of Article 2206, in relation to Article 2217and paragraph (1) of Article 2219, of the Civil Code, which the Court hereby fixes at P30,000.00 for each of the two deceased victims payable to their respective heirs.
On this score, the Court finds it opportune to clarify certain notions dealing on the recovery of these various damages.
There is a significant distinction, in the context of Book IV, Title XVIII, of the Civil Code on "Damages," between the terms "damages" and "damage."
Damages refer to the sum of money which the law awards or imposes as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence of either a breach of a contractual obligation or a tortuous or illegal act, while damage pertains to the actionable loss, hurt or harm which results from the unlawful act, omission or negligence of another. In fine, damages are the amounts recoverable or that which can be awarded for the damage done or sustained.
An award of actual or compensatory damages requires actual proof of pecuniary loss. An exception from the rule, pursuant to Article 2206 of the Civil Code, are "damages for death caused by a crime or quasi-delict" which can be awarded forthwith to the heirs of the victim by proof alone of such fact of death. No proof of pecuniary loss is likewise necessary in order that moral, nominal, temperate, liquidated or exemplary damages may be adjudicated, and it is quite enough that proof of damage or injury is adduced. Being incapable of exact pecuniary estimation, the assessment of such damages, except for liquidated damages which the parties themselves fix, is left to the sound discretion of the court.
Akin to, but not exactly in the same category as actual or compensatory damages, is the civil indemnity ex delicto particularly so referred to in paragraph 3 of Article 104, in relation to Article 100, of the Revised Penal Code as "indemnification for consequential damages." These two species of damages differ basically in that civil indemnity ex delicto can be awarded without need of further proof than the fact of commission of the felony itself while actual or compensatory damages to be recoverable must additionally be established with reasonable degree of certainty (except. as aforesaid, in the case of the indemnity for death under Article 2206 of the Civil Code). In fine, the first species merely requires proof of damages or injury (similar to that needed in an award of moral damages) to be recoverable; the second kind requires, in addition, proof of damages or pecuniary loss in order to warrant recovery.
WHEREFORE, the assailed decision is AFFIRMED with modifications in that the actual damages awarded to Virgilio Ortiz, Nenita Pablo and Zaldy Ortiz are deleted and in lieu thereof nominal damages in the following amounts are hereby awarded: P15,000.00 in Criminal Case No. 8524-R and No. 8528-R; P10,000.00 in Criminal Case No. 8527-R; and P5,000.00 in Criminal Case No. 8525-R and No. 8526-R. Moral damages in the amount of P30,000.00 are also hereby awarded to the heirs of each of the two deceased victims.
The Court orders that copies of this decision be furnished the Department of Justice and the Department of Interior and Local Governments which agencies are enjoined to take the lead in apprehending and bringing to justice the other accused who have remained at large.
SO ORDERED.
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