People Of The Philippines v. Lozano

PARAS, J.:

This is an appeal from the August l8, 1989 decision of the Regional Trial Court, First Judicial Region, Branch 24, Cabugao, Ilocos Sur, in Criminal Case No. 993-K, finding the accused Francisco Lozano and Ernesto Morales guilty beyond reasonable doubt as co-principals in the commission of the crime of murder, qualified by treachery and aggravated by nighttime which is not offset by any mitigating circumstance, each is hereby sentenced to suffer the penalty of reclusion perpetua , with all the accessory penalties provided for by law, to indemnify, jointly and severally, the legal heirs of the late Ernesto Gazmen, Sr., in the amount of P100,000.00 without subsidiary imprisonment in case of insolvency, and to pay proportionate costs (Rollo , Decision, pp. 46-47). The appellant was charged in an information filed by Actg. 2nd Asst.

Provincial Fiscal Ulpiano I. Campos of Vigan, Ilocos Sur an August 21, 1985, which reads: The undersigned Acting 2nd Assistant Provincial Fiscal accuses Francisco Lozano, Ernesto Morales and Vivencio Somera of the That on or about the 11th day of March, 1984, in the municipality of Cabugao, province of Ilocos Sur, Philippines and within the jurisdiction of this CONTRARY TO LAW (Rollo , p. 10, Original Record, p. 1).

Upon arraignment, the accused Ernesto Morales, Vivencio Somera and Francisco Lozano entered a plea of not guilty to the crime charged (Original Record, pp. 49; 70). The trial of the case ensued. The prosecution presented the following witnesses: Ernesto Gazmen, Jr., Joseph Soller, Floro Soller, Dr. Jaime Gorospe, Nestor Sabio and Alfredo Johnny Siruno.

Ernesto Gazmen, Jr., the eyewitness of the prosecution and the son of the deceased Ernesto Gazmen, Sr. narrated that on March 11, 1984 at 9:00 o'clock in the evening, he was at a cockpit to watch and bet on the cock. He was at the west side on a higher level and saw his father at the south of the ringside of the arena. His distance from his father was more or less five (5) meters away.

While the cockfighting was going on at past 8:00 o'clock in the evening, his father, Ernesto Gazmen, Sr., was shot to death by Francisco Lozano. He claimed that he actually saw Lozano shoot his father and the shots were successive. He also saw that Francisco Lozano had companions at that time, they were Ernesto Morales and Vivencio Somera.

The two were behind Lozano. Lozano was a meter away from his father when he poked his gun at the latter (Victim's back was towards Lozano) while his companions Morales and Somera were holding their guns aiming their guns at his late father. He admitted that he did not notice if the two accused, Morales and Somera, fired their guns at his father, who was standing when he was successively fired upon by Lozano and who slumped when he was hit.

When he saw Lozano fire his gun at his father, he shouted and shouted that Francisco Lozano shot his father but he was not able to do anything because he was afraid, as the killers were armed and he was unarmed. After his father slumped, the people, including the three killers, ran away. When he went to see his father, he just peered at him and saw that he was already dead.

After seeing the condition of his father, he called for a policeman and the one who came to assist him was Angelino Savella. The body of his father was brought to the emergency hospital by his father's workers. As he was advised not to accompany the body, he went home.

He saw the cadaver of his father once when he went to the emergency hospital and In addition, he also testified that he knew very well the three persons who shot his father: Francisco Lozano who was a P.C. Sergeant, married to a native of Cabugao; and Ernesto Morales and Vivencio Somera, who were both policemen. He identified them in court by pointing to them. He also He further testified that at the time he saw Lozano, he was wearing a blue denim jacket, but he In viewing the on going cockfighting, his He mentioned Despite gruelling cross examination, witness Significantly, all the witnesses of the prosecution except Ernesto Gazmen, Jr. did not see Vivencio Somera at the scene of the crime at or about the time the late Ernesto Gazmen, Sr. was shot.

Hence, after the prosecution had rested its case, accused Vivencio Somera filed a motion to dismiss by way of a demurer to the evidence (Original Record, pp. 215-217) which was granted by the Court on September 23, 1987 for lack of a prima facie case against the accused (Original Record, p. 219). Accused Ernesto Morales was deemed to have waived his right to present evidence for and in his defense by evading the processes of the court since August 10, 1988 up to the present, when he was required to put up another bail bond but went into hiding instead.

Then, on February 5, 1989, Morales was the victim in a shooting incident that happened in the town proper of Cabugao and was hospitalized at the Gabriela Silang Hospital, Tamag, Vigan, Ilocos Sur, but escaped while being transferred to the Provincial Jail at the capital town of Vigan. Since then up to the present, accused Ernesto Morales has remained at-large, leaving the Citizens Legal Assistance Office, helpless in plotting his defense. Nevertheless, trial in absentia ensued with respect to accused Morales, as authorized by the 1973 and 1987 Constitutions (Rollo , Judgment, pp. 40-41).

The theory of the defense consists of denial and Francisco Lozano , one of the accused, testified His testimony was corroborated by the other Constancia Franco Salonga , a supervising forensic On rebuttal the prosecution presented Mrs. Linda She also testified that accused Ernesto Morales On sur-rebuttal, the defense recalled accused On August 18, 1989, the trial court rendered

WHEREFORE, finding both accused,reclusion perpetua , with all the accessory penalties The multiple frustrated murder SO ORDERED. (Rollo , Judgment, pp. 46- Hence, the instant appeal. Appellant raised the following assignments of I THE TRIAL COURT ERRED IN ACQUIRING II IN THE ALTERNATIVE, THE TRIAL COURT III THE TRIAL COURT ERRED IN FINDING THE IV THE LOWER COURT ERRED IN CONSIDERING The appeal has no merit. I Accused-appellant Lozano's allegation in his first The record shows that the issue of jurisdiction in Besides, a party is estopped from assailing the jurisdiction of a court after voluntarily submitting himself to its jurisdiction (Tejones v. Gironella, 159 SCRA 100 ). Accused-appellant Lozano's appearance in the arraignment and pleading not guilty to the crime charged, is a sign that he voluntarily submitted himself to the jurisdiction of the court, so that, jurisdiction has been acquired by the court over his person and continues until the termination of his case. It is also the contention of the accused-appellant Lozano that as a military man (member of the Philippine Constabulary) he should be tried by the military court and not by the civil court. Under General Order No. 59 Military Tribunals created under General Order No. 8 exercise exclusive jurisdiction over all offenses committed by military personnel of the Armed Forces of the Philippines while in the performance of their official duties. The only requisite, however, for offenses committed by military personnel to be covered by and fall under the ambit of the aforesaid Order No. 59 is that the "act or omission is committed in the actual performance of official duties " (Dela Cruz v. Moya, 160 SCRA 838 ) (Emphasis supplied). In the case at bar, there is It is significant to note that appellant was immediately discharged from the military service after he committed the crime, which resulted in the case being filed in the civil court. As correctly observed by the trial court in its decision, this case was initially filed with the military authorities at Camp Dangwa, La Trinidad, Benguet, Lozano being then a P.C. sergeant and Morales and Somera, members Rollo , p. 46). II The last three assigned errors boil down to the issue of credibility of witnesses. The prosecution On these testimonies of the witnesses, their positive identification and categorical declarations that accused-appellant Lozano was one of the assailants, the prosecution was able to prove the guilt of the accused. There being no evidence to show that the witnesses for the prosecution were actuated by improper motive, their identification of the accused as the assailant should be given full faith and credit (People v. Somera, 172 SCRA 684 ). On the other hand, appellant Lozano merely relies on his defense of alibi which he was not able to substantiate by more convincing and credible evidence. Alibi is a weak defense which cannot prevail over the positive identification of the accused by the prosecution eye-witnesses (People v. Almenerio, 172 SCRA 268 ). For alibi to prosper, the requisites of time and place must be strictly met (People v. Abaya, 170 SCRA 691 ), it must be shown that it was physically impossible for the accused to have been at the scene of the crime at the time it was committed (People v. Salcedo, 172 SCRA 78 ; People v. Catubig, 195 SCRA 505 ) or it must be established by clear and convincing evidence that the accused was at some other place and for such a period of time as to negate his presence at the time when and where the crime was committed (People v. Solis, 195 SCRA 404 ). Even under the theory of the defense appellant was just outside the cockpit at the time the incident happened. Hence, there appears to be no cogent reason to disturb the findings of fact and PREMISES CONSIDERED, the appealed decision of the trial court dated August 11, 1989 is hereby AFFIRMED, with the modification that the indemnity to the SO ORDERED.

Melencio-Herrera, Padilla, Regalado and Nocon, JJ., concur.