People of the Philippines vs. Nitcha, G.R. No. 113517, Jan. 19, 1995

People of the Philippines vs. Nitcha, G.R. No. 113517, Jan. 19, 1995

Nature:   Before the Court is the appeal interposed by accused-appellant from the decision rendered by the Honorable Pedro C. Cacho, Presiding Judge of RTC in Pangasinan, which pronounced accused-appellant's culpability of the murder of May Villa Rica Sibayan. In addition to the principal penalty of reclusion perpetua, Accused-Appellant.was required to pay to the heirs of the victim P50,000.00 as indemnity, P25,000.00 as moral damages, P20,000.00 in the form of exemplary damages, and P43,000.00 for actual expenses.

Keywords:  Accused of murder but SC ruled that it was homicide; rules on bail; reclusion perpetua; reclusion temporal

Summary: 

RTC - charged accused with Murder

SC - charged accused with Homicide, a crime punishable by Reclusion temporal, thus, the accused is entitled to bail.

MELO, J.

Facts:  On October 1990, at around 7 o'clock in the evening, Jojo Belmonte went out of his house located at Purok IV, Barangay Alac, Pangasinan to buy some cigarettes in a nearby store. Before Jojo Belmonte could buy the cigarettes, Doro Nitcha arrived, uttered the words "You are one of them" ("Maysa ca met") in the vernacular, then started mauling him. Unable to endure the pain, Jojo fought back. A few minutes had gone into the fight when May Villarica (a.k.a. Lydia) Joselito, Agustin and Marcelina (Nenet), all surnamed Sibayan, arrived. May and Joselito tried to pacify the two protagonists, however, their efforts proved futile as Doro Nitcha refused to be pacified.

The fighting stopped upon the arrival of Doro's sister Victoria Corpuz (Baby) who, upon seeing the commotion, dragged Doro away from the fight and brought him home.

Likewise, Marcelina (Nenet), Agustin, May and Joselito proceeded towards their house located in front of the store where the incident occurred.

Not long thereafter and while the Sibayans were still on their way, appellant Florestan Nitcha, brother of Doro, arrived at the sari-sari store brandishing a gun and shouting in Tagalog, "Walanghiya kayo, putangina ninyo, papatayin ko kayong lahat!" After uttering those words, appellant fired his gun in the direction of the Sibayans, the bullet hitting May at the back of her head and existing through the middle of her forehead. Appellant then aimed his gun at Joselito but missed.

May was brought to the Eastern Pangasinan District Hospital in Tayug, Pangasinan where she was given first aid treatment. Upon the advice of a doctor, the victim was brought to a hospital in Dagupan City. May, however, expired on the way thereto.

Shortly after the shooting incident, appellant went back to his mother's house before proceeding to the police station of San Quintin, Pangasinan where he surrendered himself together with his service firearm.

Issue:  WON the accused is entitled to bail.

Held:  YES.

Ratio: It is clear from Section 13, Article III of the 1987 Constitution and Section 3, Rule 114 of the Revised Rules of a s amended, that:

. . . before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute.

xxx xxx xxx

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion id limited to determining whether or not evidence of guilt is strong. But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. . . .

The clear implication therefore, is that if an accused who is charged with a crime punishable by reclusion perpetua is convicted by the trial court and sentenced to suffer such a penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. In such a situation, the court would not have only determined that the evidence of guilt is strong — which would have been sufficient to deny bail even before conviction — it would have likewise ruled that the accused's guilt has been proven beyond reasonable doubt. Bail must not then be granted to the accused during the pendency of his appeal from the judgment of conviction. Construing Section 3, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, this Court, in the en banc Resolution of 15 October 1991 in People vs. Ricardo Cortez, ruled that:

Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong.

We are, however, not convicted that the qualifying circumstance of treachery was attendant in the killing. It must be recalled that Doro Nitcha, the brother of accused-appellant, was in a fight with one Jojo Belmonte and was forcibly dragged away from the fight and brought home by his sister, Victoria Corpus. Upon seeing his injured brother, accused-appellant became enraged and immediately dashed off to the scene of the fight. Per testimony of Joselito Sibayan, the husband of the victim, only 4 to 5 minutes had elapsed from the time Doro was dragged away to the time that accused-appellant arrived at the scene of the fight (pp. 6-7, t.s.n., February 2, 1993). Thus, at such a short interval, accused-appellant did not have sufficient time consciously adopt the mode of attack. To establish treachery, the evidence must show that the accused made some preparation to kill the victim in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself. A killing done at the spur of the moment is not treacherous.

However, we do not agree with the trial court that the crime committed was murder. The qualifying circumstance of treachery can not logically be appreciated because the accused did not make any preparation to kill the deceased in such a manner as to insure the commission of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. This circumstance can only be applied, according to the tenor of article 13, sub-section 16 of the Revised Penal Code, when the culprit employs means, methods or forms of execution which tend directly and specially to insure the commission of the crime and at the same time to eliminate or diminish the risk to his own person from a defense which the other party might offer. In United States vs. Namit, 38 Phil. 926, it was held that the circumstance that an attack was sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise a homicide to murder, where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate the preparation of the homicide without risk to himself. In the present case, the circumstances negative the hypothesis that the defendant reflected on the means, method and form of killing the offended party. There was absolutely nothing personal between the accused and Basas. He was, so he thought, erroneously, protecting the property which he was detailed to watch by killing the stranger. His purpose was to kill, the decision was sudden, and the position of the stranger was accidental and did not matter. In fact, in the nature of things, to give the other man an opportunity to defend himself or to return the attack would have been a contradiction.

The crime committed by accused-appellant is, therefore, homicide and not murder. The penalty for homicide, under Article 249 of the Revised Penal Code, is reclusion temporal. There being no aggravating nor mitigating circumstances, the penalty imposable is reclusion temporal in its medium period; and applying the Indeterminate Sentence Law, the penalty that should be imposed upon accused-appellant is an indeterminate sentence within the range of prision mayor, as minimum, and reclusion temporal medium, as maximum.

Ruling:  WHEREFORE, the decision appealed from is hereby MODIFIED, and accused-appellant is hereby found guilty of HOMICIDE and sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum.

In all other respects, he appealed decision is hereby AFFIRMED.

Doctrine:  – murder; claim that arrest was illegal for want of preliminary investigation – Act of posting a bail bond, apart from the fact that he entered a plea of not guilty, is tantamount to foregoing the right to question the assumed irregularity; Bail is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua (absolute); Bail is a matter of discretion when the offense charged is punishable by reclusion perpetua; If accused is convicted by the crime (reclusion perpetua), bail is neither a matter of right nor a matter of discretion. Bail must not be granted.