In a criminal case before the Court of Appeals, the accused, whom I represent, filed a motion for reconsideration of the judgment of the said court convicting them for the felony of homicide. The accused, in their pending motion for reconsideration, raised the following issues: lack of criminal intent, criminal negligence, lack of proof beyond reasonable doubt, credibility of witnesses, and conspiracy. May I share with the visitors of this blog the substance of the said motion for legal research purposes. Thus:
x x x.
INTRODUCTION
This pleading respectfully seeks the kind reconsideration of the DECISION, dated ____, of this Honorable Court, which affirmed with modifications the appealed Decision, dated ___, of the Regional Trial Court, Branch ___, of Xxx City.
MATERIAL DATES
The undersigned counsel for the appellants received via registered mail a certified true copy of the abovementioned Decision of this Honorable Court on ___, Monday. The 15th day of the undersigned counsel to file this motion for reconsideration expires on _____, Tuesday. This motion which was originally intended to be filed on _____, Monday, would instead be filed on September 8, 2009, Tuesday, because ____ was recently declared as a special non-working holiday nationwide (date of burial of the executive minister of the Iglesia Ni Cristo Church).
E R R O R S
With all due respect to this Honorable Court, the appellants humbly submit that it ERRED:
1. In giving full faith and credence to the questionable testimonies of all the prosecution “eyewitnesses”;
2. In not crediting as “reasonable doubts” in favor of the appellants all the various inconsistencies in the testimonies of all the prosecution witnesses;
3. In not ruling that the prosecution had failed to destroy the presumption of innocence and the equipoise doctrine which the Constitution grants in favor of the appellants, in the light of all the reasonable doubts raise and argued by the appellants in their appeal brief.
4. In applying the existence of conspiracy between the two appellants;
5. In holding that the appellants are liable for damages arising from the death of the deceased ___.
6. In applying Article 4 of the Revised Penal Code; and
7. Assuming arguendo that the appellants are liable, in not applying instead Article 365 of the Penal Code on reckless imprudence resulting in the death of the deceased, which provision imposes a much lower penalty, as proved by the evidence on record.
DISCUSSION
Being closely related to each other, the abovementioned assigned errors will be discussed jointly.
Offhand, it must be noted that the appellants have no criminal cases other than the instant case. (See: Memorandum [“Return of Warrant/Order of Arrest”], dated ____, of the Warrant and Subpoena Section, thru P/Insp. Edgar C. Ariate, Record, p. 92. See also Arrest Report, dated ___, issued by the same Section, Record, pp. 94). They are not notorious criminals. They are peace-loving and respected individuals of their barangay for decades, maintaining a happy and united family and a lawful livelihood store.
The first prosecution witness Xxx Xxx (a brother of the deceased Xxx Xxx) admitted on cross examination that he had “no personal knowledge” of the incident. His information about the incident came from his brother Xxx Xxx (who reported the matter to him after the incident) and from Xxx Xxx and her husband (whom he interviewed 4 hours after the incident, i.e., at 3:00 AM of March 1, 2006). [Decision, p. 3; TSN, 1 August 2006, p. 7-53].
It will be noted that the second prosecution witness Dr. Rolando Victoria (medico-legal officer), who conducted the autopsy on March 6, 2006, stated that he had no factual basis and direct personal knowledge for the conclusion that the death was due to “mauling”, for it was only conveyed to him, although he was sure that the actual cause of death was “traumatic head injuries”. He did not conduct a blood alcohol test on the blood of the deceased because the victim was already dead. (Decision, p. 3; TSN, 22 August 2006, pp. 11-74). There is nothing in his testimony that would rule out the possibility that the traumatic injury of the deceased could have been caused by an accidental fall or that would absolutely limit such injury within the realm of homicidal intentions.
The third prosecution witness x x x (a brother of the deceased) testified that it was already 11:00 PM of February 28, 2006 (i.e., 15 to 30 minutes after the incident had happened and 1 hour after he heard the shouting in front of his gate) that he went to the scene of the incident with his brother in law, xxx. He stated that the deceased was drunk at the time of the incident. The deceased had undergone alcohol rehabilitation. (Decision, p. 4, TSN, 19 September 2006, pp. 4-42).
The fourth prosecution witness xxx (a brother-in-law of prosecution witness Xxx) testified that from 10:00 PM to 11:00 PM he was at home (i.e., 15 to 30 minutes after the incident happened). At 11:00 PM of the said date, his mother-in-law informed him of the incident. His house was located 30 meters away from the scene of the incident. He went “alone” to the scene of the incident (contrary to the statement of Xxx that they were together in going to the scene of the incident); that he just saw Xxx already at the scene of the incident, (Decision, p. 5; TSN, 31 October 2006, pp. 6-42). Just like Xxx, he testified that he allegedly saw the “entire event”, which was incredible.
The two prosecution witnesses Xxx and xxx testified that they allegedly “saw” the two appellants simultaneously assaulting the deceased. The record however shows that this was contrary to the statement of another so-called prosecution “eyewitness” in the person of xxx who clearly stated that she saw only the appellant Xxx Xxx [not Xxx Xxx] doing the said act).
Xxx Xxx, who was the fifth prosecution witness, testified that she was sleeping at 11:00 PM of February 28, 2006 (15 to 30 minutes after the incident) when she heard a commotion outside her house, which was located 15 meters away from the house of the appellants. She stated that she allegedly “saw” appellant Xxx Xxx assaulting the deceased while his father appellant Xxx Xxx was watching. She saw the incident “after” it had happened and while she was “sleeping”.
It must be noted that on cross examination, Xxx Xxx testified that the incident happened at 11:30 PM (thus moving the actual time of the incident by 45 minutes to 1 hour). She stated that the appellant Xxx Xxx was allegedly assaulting the deceased continuously from “15 to 30 minutes”. She clearly stated that prosecution “eyewitness” Xxx Xxx and other neighbors were present “only after” the incident, i.e., the deceased was already being brought to the hospital. She clearly stated that the appellant Xxx Xxx “had nothing to do” with the death of the deceased. She stated that she was the one who informed xxx and xxx Xxx about the incident “after it had happened” (not during and while it was happening). (Decision, pp. 5-6; TSN, 8 February 2007, pp. 5-36).
It is respectfully submitted that this Honorable Court erred in not giving credence to the substance of the sworn statement, dated March 30, 2006, of the appellant Xxx Xxx (Exh. “1”; Record, pp. 306-297-303) which he had affirmed in open court. Its following allegations were no rebutted by the prosecution, thus:
X x x.
1. Lumabas na din ako ng aming tindahan at inaya ko ang aking ama na pumasok na ng bahay at hayaan na lamang si xxx na umuwing mag-isa. Ngunit dahil sa pagpupumiglas ni xxx ay nakawala siya sa hawak ng aking ama. At dahil sa kalasingan niya at pasuray na pagkawala, nawalan siya ng balanse at napatid siya sa kanyang tsinelas kaya ito ay natumba una ang ulo sa semento;
2. Mabilis lamang at walang nakakita sa pangyayari dahil tulog na ng mga kapitbahay kaya ang sinasabi ni Xxx Xxx sa kanyang Salaysay na ibinigay sa pagtatanong ni PO3 Xxx noong ika-1 ng Marso 2006 na nakita niya na itinulak ko sa mukha at pinagsusuntok ko diumano si xxx ay walang katotohanan at udyok o utos lamang ng pamilyang Xxx. Paano ko ito gagawin gayong malaki ang katawan ni xxx kaysa sa akin at hindi ako maglalakas loob na gawin ito dahil kilala ang pamilyang Xxx sa aming lugar na maimpluwensiya at maaring balikan ako ng mga ito. Kung anuman ang pinangako ng pamilyang Xxx kay Xxx sa kanyang pagbigay ng Salaysay laban sa akin ay sila na lamang ang nakakaalam;
3. Dahil nga sa tulog na ang mga tao nang mga oras na yon gaya ng inamin nina Xxx at xxx sa kanilang mga Sinumpaang Salaysay na may petsa na ika-2 ng Marso 2006 nagpapatunay lamang na wala sila sa lugar ng pinangyarihan at hindi maaring maabutan pa nila ito;
4. Makikita sa mga Salaysay ni Xxx at Sinumpaang Salaysay na may petsang ika- 2 ng Marso 2006 nina Xxx at xxx na magkaiba. X x x. Sinabi ni Xxx na ako lamang ang diumano’y sumuntok kay xxx habang ang aking ama ay nakamasid lamang samantala ng sabi nina xxx at xxx ay kaming dalawa ng aking ama ang nanuntok. X x x.
5. Sinabi din ni Xxx na dinala na si xxx sa ospital bago niya pinuntahan ang bahay ni xxx na kapatid ni xxx upang ipaalam ang
nangyari. Kung sa ganon ay hindi na dapat nasaksihan pa nina xxx at xxx ang diumano’y panununtok ko ng aking ama kay xxx gayong nasa ospital na ito bago ipaalam sa kanila ang nangyari;
6. Sa madaling salita, nadatnan na lamang nina xxx at xxx si xxx sa ospital kaya hindi maaring sila pa ang tumawag sa barangay para dalhin si xxx sa ospital at hindi rin maari na nakita nila kami ng aking ama sa aktong diumano ng pagsusuntok namin kay xxx;
7. Ibig sabihin ay kung nakarating man sila sa lugar ng pinangyarihan ay nakalipas na ang pagkatumba at pagkabagok ng ulo ni xxx sa semento at imposibleng nasaksihan pa nila ang pangyayari kaya kasinungalingan at gawa-gawa lamang ang diumanong Salaysay nila na pinagtulungan namin ng tatay ko si xxx . Ang katotohanan ay sa ospital na lamang nilang dalawa at Xxx naabutan si xxx . Ito rin ay inamin ni Xxx sa kanyang Salaysay na ginawa sa pagtatanong ni PO3 xxx noong ika- 2 ng Marso 2006 nang sinabi niya na nagtungo siya sa ospital bago nagbalik sa pinangyarihan, parte ng kanyang Salaysay ay sa ospital ang sumusunod:
Malaman ko lang x x x na itong si xxx ay kanilang dinala sa xxxx District Hospital x x x kaya’t agad akong nagtungo sa ospital x x x Matapos kong malaman ang kundisyong ng aking kapatid x x x ay nagbalik ako doon sa pinangyarihan x x x ( Sagot 08 sa kanyang Salaysay)
It is humbly submitted that this Honorable Court gravely erred in not giving credence to the honest, forthright, simple and straightforward testimony of the appellant Xxx Xxx, thus exposing the appellants to serious penalties that they do not deserved and which are not supported by the evidence on record.
Affirming his earlier extrajudicial sworn statement, the appellant Xxx Xxx testified that at around 10:00PM on 28 February 2006 he and other relatives were watching television at home (their store was located outside their home with a distance of 9 meters). The deceased Xxx Xxx, already drunk from other places, arrived and asked for a bottle of beer. His wife refused to give him another round of beer because he was too drunk. The deceased even molested his wife by touching her waistline. His father and co-appellant Xxx Xxx offered to bring the deceased to his house by placing his hand on the shoulder of the deceased to assist him to walk safely (as the deceased was “pasuray-suray”). He accompanied his father (in bringing the deceased to his house) so that his father would have a companion on his way back home (since it was very late at that time). His father Xxx Xxx lost his hold on the victim, because the deceased was struggling against his father’s helpful gesture to bring him home. The deceased slipped, his head hitting the pavement. The incident happened near the house of “Aling Vangie”, not that of Xxx Xxx. [The former defense counsel neglected to present xxx to the witness stand]. It was xxx, not Xxx Xxx, who shouted for the help of the Barangay. Some people from a nearby house came out to wake up the deceased. [The former defense counsel neglected to present the said people to the witness stand, despite the gravity of the offense charged against the appellants). The deceased was a friend of his father for many years and a neighbor of their family, living on the same street (___St.). The appellants had no reason at all to kill or harm the deceased. He and his father did not escape. At 12:30 AM of March 1, 2006 (midnight) his father was “invited” by the local police and detained at the police station (without a warrant of arrest). The appellants have no notorious criminal records and pending criminal cases, other than the instant case. (Decision, pp. 6-7; TSN, 5 July 2007, pp. 11-72).
It will be noted that the second defense witness Dr. _____ (Emergency Room doctor, Xxx General Hospital) testified that at around 10:30 PM of February 28, 2006 (which is closer to 10:45 PM by 15 minutes vis-à-vis the time alleged by the appellant Xxx [10:45 PM], and not 11:00 PM as alleged by Xxx and Xxx Xxx; and not 11:30 PM as alleged by Xxx), he attended to the deceased. He clarified on cross examination that he attended to the deceased at around 10:40 PM of the said date (which is still much earlier than the time alleged by Xxx, xxx, and Xxx). (Decision, p. 7; TSN, 31 July 2007, p. 17).
The appellants wish to stress the following points in this motion:
1. Xxx stated that she saw Xxx assaulting the deceased at about 11:30 PM of 28 February 2006. The incident happened at 10:45 PM. The emergency room doctor, Dr. ___, who had no reason to lie as an independent witness, testified that he attended to the victim between 10:30 PM to 10:40 PM, or 1 hour prior to the time alleged by Xxx and 15 to 30 minutes prior to the time alleged by Xxx and xxx.
2. Xxx Xxx did not state that she saw Xxx Xxx and xxx during the actual occurrence of the incident (which she alleged took place at 11:30 PM). Xxx Xxx and Xxx Xxx alleged that the incident happened at 11:00 PM (or 30minutes before the time alleged by Xxx Xxx [11:30 PM]).
3. Xxx Xxx (brother of the deceased) and his brother in law Xxx Xxx perjured themselves when they testified that they actually saw the entire incident (i.e., Xxx Xxx and Xxx Xxx assaulting the deceased). Xxx Xxx testified that she informed them about the incident only after it had already happened. Therefore, they did not witness the incident.
4. Xxx Xxx and Xxx Xxx perjured themselves when they testified that Xxx and Xxx Xxx assaulted the deceased to death. Xxx Xxx, who informed them about the incident after it had ended, testified that what she allegedly saw was that only Xxx Xxx was assaulting the deceased and that Xxx was doing nothing.
5. The fact that the deceased and the appellant Xxx Xxx were long-time friends for many years and neighbors living on the same street is uncontested by the prosecution. There was no motive of hate, envy, ego, and the like that could have impelled the appellants to kill the deceased.
6. The fact that the deceased was in his mid-life and that he was drunk (and habitually drunk), which is an uncontested fact in the Record, notwithstanding the absence of a formal blood alcohol test report, and the fact that the deceased was brought to the hospital only by a tricycle after his head had hit the pavement contributed to his unexpected demise which accelerated his death).
The grossly reckless and extremely prejudicial errors committed by the former counsel for the accused before the court a quo (originally, Atty. Xxx Xxx and a certain “Atty. Xxx”; then later, Atty. Xxx Xxx) consisted of the following procedurally and substantively harmful acts which had radically jeopardized the life and liberty of the appellants and by extension the happiness and peace of mind of their families, to wit:
1. The former defense counsel Atty. Xxx Xxx did not present (a) the appellant Xxx Xxx, (b) the members of the families of the appellants who had personal knowledge of the incident, e.g., their wives, and (b) their neighbors who had likewise witnessed the incident. (See Order, dated ___, Record, p. 256; and Order, dated __).
2. During the pretrial on ___, the former defense counsel (Atty. Xxx Xxx and “Atty. Xxx”) manifested that they would present 6 defense witness, namely: the 2 appellants, their respective wives (Xxx and Xxx), and 2 additional witnesses whose identities would be disclosed by them during the trial. (Order, 22 June 2006; Record, pp. 101-102).
This was not done by the former defense counsel, despite the extremely prejudicial effects the case would wreak on the appellants and on their lives and liberty upon conviction.
The former defense counsel did not explain to the trial court and to the appellants why they neglected to perform their foregoing open-court commitment to present the aforementioned corroborating witnesses.
The trial court did not inquire with the former defense counsel why this was not done. It did not exert any helpful efforts to protect the procedural and substantive due- process rights of the uneducated appellants, despite the gravity of the offense charged against them and the seriousness of the ill effects and consequences of their convictions.
3. During the preliminary conference before the Branch Clerk of Court, the former defense counsel, Atty. Xxx Xxx manifested that she would present 4 defense witnesses (Report of the Preliminary Conference by the Branch Clerk of Court, dated ___, Record, pp. 97-98). The aforecited observation is hereby reiterated in this section for the same reason as stated above.
4. During the trial, the former defense counsel, Atty. Xxx Xxx, presented only 2 defense witness, namely, the appellant Xxx Xxx and Dr. ___ (Emergency Room doctor). She did not present the other appellant Xxx Xxx, his wife Dolores Xxx, his daughter-in-law Xxx (wife of appellant Xxx Xxx), and others in the neighborhood.
5. The former defense counsel did not present character evidence to prove the reputation of the Xxx Family and the appellants in their area, i.e., character witnesses, NBI Clearance, Police Clearance, Barangay Clearance, Parish Priest’s Certification, Civic Organizations’ Endorsements, and the like. This case involves a crime of moral turpitude and character evidence is crucial to prove the credibility of the appellants and the falsity of the testimonies of the so-called eyewitnesses.
6. The former defense counsel did not move for the submission of an exhaustive Memorandum to assist the trial court to see and interpret the evidence as they are -- and in line with the constitutional presumption of evidence and the equipoise rule.
The appellants respectfully reiterate hereinbelow the relevant jurisprudence in aid of their plea for acquittal, as argued in their appeal brief.
Where there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been overlooked or the significance of which has been misinterpreted or unless some conclusion established from the facts is inconsistent with the trial court’s findings or there is some inherent weakness in the evidence upon which the conclusion is based, the appellate court must review and correct the same. Such is the case in this appeal. (CARMEN YTURRALDE, et. Al. vs. MARIANO VAGILIDAD, et. al., G.R. No. L-20571, May 30, 1969).
Where the inculpatory circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not meet the test of moral certainty, and that “necessarily, a judgment of acquittal must issue. This is the time-honored equipoise doctrine. Verily, the Supreme Court has repeatedly held that where the circumstances shown to exist yield two (2) or more inferences, one of which is consistent with the presumption of innocence while the other or others may be compatible with the finding of guilt, the Court must acquit the accused: for the evidence does not then fulfill the test of moral certainty and is insufficient to support a judgment of conviction. Indeed, a corollary to the constitutional presumption of innocence is the rule that the circumstances of the case must exclude all and each and every hypothesis consistent with appellants’ innocence. (PEOPLE OF THE PHILIPPINES vs. JOEL ELLOREG DE LOS SANTOS, et. al., G.R. No. 126998. September 14, 1999).
Although the identification of an accused by an eyewitness is a vital piece of evidence and most decisive of the success or failure of the case for the prosecution, eyewitness identification has been described by authors as being inherently suspect, and, not infrequently, inaccurate. The identification made by Xxx Xxx, Xxx Xxx and Xxx Xxx in the instant case is not only suspicious and inaccurate but totally perjurious. Although, in murder and homicide cases, motive is not an element of the offense, it becomes material when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. [People vs. Faustino, G.R. No. 129220, 06 September 2000; People v. Astorga, 283 SCRA 420, 433 (1997), citing People v. Sta. Agata, 244 SCRA 677, 684 (1995); People v. Cayetano, 223 SCRA 770 (1993); People v. Magpayao, 226 SCRA 13, 27 (1993)].
The overriding consideration is not whether a court has doubts on the innocence of the accused (because innocence is constitutionally presumed), but whether it entertains such doubts on his guilt. [People vs. Pagauia, 267 SCRA 17]. If a human life must be taken to pay a debt to society, let not a wrong man, ever, be made to account for it. The trek to Justice is not a game of chance or skill but a quest for truth, the only path by which the righteous end can be reached. (People vs. Faustino, G.R. No. 129220, 06 September 2000).
Only by proof beyond reasonable doubt, which requires moral certainty, may the presumption of innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]). Moral certainty has been defined as a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. (People vs. Lavarias, 23 SCRA 1301 [1967]). Absent the moral certainty that accused-appellant caused the death of the victim, acquittal perforce follows. Proof beyond reasonable doubt is needed to overcome the presumption of Innocence (People vs. Reyes, 60 SCRA 126 [1974]). Accused-appellant’s guilt must be proved beyond reasonable doubt (People vs. Maliwanag, 58 SCRA 323 [ 1974]) otherwise, the Court would be left without any other recourse but to rule for acquittal. Courts should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. (En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000]).
It is submitted that conspiracy has not been established by the prosecution. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose. (LADONGA VS. PEOPLE, GR 141066, February 17, 2005).
Conspiracy is not a harmless innuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove it must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared and kept within the penal fold. Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always be founded on the strength of the prosecution’s evidence. (Id.).
It must be noted further that the rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty. It is the role of the prosecution to prove the guilt of the appellant beyond reasonable doubt in order to overcome the constitutional presumption of innocence. In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty -- not mere possibility -- determines the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite quantum of proof required in all criminal cases. (Id.).
(See also: TEVES, et al. vs. THE SANDIGANBAYAN, GR 154182 EN BANC, December 17, 2004, which held that conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt, and that the evidence must reasonably be strong enough to show community of criminal design).
Finally, as held in Vda. De Enriquez vs. Atty. Manuel San Jose, A.C. No. 3569, February 23, 2007, the Code of Professional Responsibility in Rule 18.03 enjoins a lawyer not to neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him liable. A lawyer engaged to represent a client in a case bears the responsibility of protecting the latter’s interest with utmost diligence. It is the duty of a lawyer to serve his client with competence and diligence and he should exert his best efforts to protect, within the bounds of the law, the interest of his client. It is not enough that a practitioner is qualified to handle a legal matter; he is also required to prepare adequately and give the appropriate attention to his legal work.
Indeed, when a lawyer takes a client’s cause, he covenants that he will exercise due diligence in protecting the latter’s rights. Failure to exercise that degree of vigilance and attention expected of a good father of a family makes the lawyer unworthy of the trust reposed in him by his client and makes him answerable not just to his client but also to the legal profession, the courts and society. Until the lawyer’s withdrawal is properly done, the lawyer is expected to do his or her best for the interest of the client. The appellants submit that in this case, their former defense lawyers fell short of the diligence required of a lawyer entrusted with a case. (Id.).
The appellants humbly reiterate the argument in their appeal brief to the effect that, as held in the case of DOMINGO DEGUZMAN, vs. SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, G.R. No. 103276, April 11, 1996, new trial may be allowed on the ground of “negligence or incompetency of counsel”. When what is at stake is the life and liberty of a party (not just pesos and centavos) and when such party is about to lose his liberty “because his former lawyers pursued a carelessly contrived procedural strategy of insisting on what has already become an imprudent remedy”, the Court may suspend the Rules in the interest of justice and allow a new trial.
Paraphrasing the foregoing Supreme Court decision, the appellants’ present dilemma is certainly not something reducible to pesos and centavos. No less than their liberty is at stake here. And they are just about to lose it simply because their former lawyers pursued a careless procedural strategy. Under the circumstances, higher interests of justice and equity demand that the appellants should not be penalized for the costly mistakes of their previous lawyers. To cling to the general rule in this case is only to condone rather than rectify a serious injustice to appellants whose only fault was to repose their faith and entrust their innocence to their previous lawyers. (Id.).
The rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Even the Rules of Court envision this liberality. The power of the appellate court to remand this case to the trial court in order to allow the appellants to present additional evidence is in line with the compassionate power of this appellate court to dispense justice and not to bind and chain the hand that dispenses it. That is precisely why courts in rendering real justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on the balance, technicalities take a backseat against substantive rights, and not the other way around. Truly then, technicalities, in the appropriate language of Justice Makalintal, "should give way to the realities of the situation". And the grim reality petitioner will surely face, if we do not compassionately bend backwards and flex technicalities in this instance, is the disgrace and misery of incarceration for a crime which he might not have committed after all. More so, considering that appellants’ clean record as citizens remained unscathed until their prosecution in the instant case. Indeed, "while guilt shall not escape, innocence should not suffer". (Id.).
Finally, the appellants humbly thank this Honorable Court for crediting them with the validated conclusion that they indeed had no intent to kill the deceased. However, the appellants humbly submit that the Court erred in applying to them Article 4 of the Revised Penal Code, which provides that criminal liability is incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. Under the said provision, anyone who inflicts injuries voluntarily and with intent is liable for all the consequences of his criminal act, such as death that supervenes as a consequence of the injuries.
The appellants beg to disagree with this conclusion of the Court that they committed a minor crime (mauling the deceased) which resulted in a major crime (homicide).
They submit that they are not liable for the demise of the deceased for such was caused by an accident caused by his own drunkenness or by force majeure.
At the most, assuming that they are indeed liable for anything, arguendo, the most that could perhaps be applied to them is Article 365 of the Penal Code which speaks of reckless imprudence resulting in homicide and which carries a very much lower penalty.
Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender. In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is “unintentional, it being simply the incident of another act performed without malice.” As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill. (ROLLIE CALIMUTAN vs. PEOPLE OF THE PHILIPPINES, GR No. 152133, February 9, 2006; citing People vs. Sara, 55 Phil. 939).
In the case at bar, the Court should not, in good conscience, attribute to appellants any malicious intent to injure, much less to kill, the deceased. In the absence of such intent, the Court should not sustain the conviction of appellants for the intentional crime of homicide, as rendered by the trial court. At the most, the appellants may be held liable for the felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code.
Under Article 365 of the Revised Penal Code, reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. (Id.).
The facts in aforecited case of ROLLIE CALIMUTAN vs. PEOPLE OF THE PHILIPPINES, GR No. 152133, February 9, 2006 are apropos:
It should be remembered that the meeting of the victim Cantre and witness Sañano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Sañano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.
In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim
Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre.
The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible.
The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was petitioner Calimutan’s intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim Cantre. [35]
Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a man’s fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters.
Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latter’s death, despite being done with reckless imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages.
X x x. (underscoring supplied).
R E L I E F
WHEREFORE, in the interest of justice, it is respectfully prayed that the Decision, dated ___, of this Honorable Court be RECONSIDERED and that the appealed Decision, dated ___, of the Trial Court be annulled and set aside and that a new one be promulgated dismissing the instant case; or, in the alternative, that the case be remanded to the trial court to enable the appellants, thru their new counsel, to present additional witnesses and evidence in support of their defenses which their former counsel had neglected to present.
FURTHER, the appellants respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.
Xxx, xxx.
LASERNA CUEVA-MERCADER
AND ASSOCIATES LAW OFFICES
Counsel for Accused-Appellants
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Xxx
Unit 15, Star Arcade, C.V. Starr Ave.
Philamlife Village, Xxx
Tel/Fax No. 8742539, 8725443
MANUEL J. LASERNA JR.
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