Qualifying and aggravating
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) - March 27, 2019 - 12:00am

This case explains the aggravating circumstance of recidivism or the prior conviction for the same kind of offenses, as well as treachery that qualifies the crime of killing a person from homicide to murder. Also discussed here is the effect of absence of powder burns in a suspect who fired a gun after he was subjected to a paraffin test, and the reasons why alibi is usually unavailable as a defense.

This is the case of Jerome who was courting his neighbor Mitch for more than six months, but was jilted since Mitch favored another suitor, Nathan. Despite being jilted, Jerome still relentlessly pursued Mitch even at her province. And when Mitch returned to Manila, Jerome visited her again on the pretext of watching television. But Mitch told Jerome not to visit her again. Jerome was thus enraged and even threatened to kill her if she decided to marry Nathan.

One evening at around 7 p.m. while Mitch was entertaining Nathan at the balcony of their house, she noticed Jerome pacing the street downstairs. So she asked Nathan to transfer to their sala where they could continue talking and sitting close to each other. Then Jerome suddenly appeared at the door and in a kneeling position, shot Nathan who died slowly in Mitch’s arms. Mitch was able to recognize Jerome but did not immediately report the incident because she was in a state of shock.

But after the Barangay Captain reported the incident to the police and after the police investigation, Mitch finally revealed the gunman as Jerome. So the police accosted Jerome and brought him to the police station for further questioning. The paraffin test on Jerome showed that he was negative for powder burns.

Nevertheless, after preliminary investigation, a Complaint for murder was filed against Jerome for the killing of Nathan. Mitch testified for the prosecution and narrated what happened and identified Jerome as the killer. The medico legal officer also testified to prove that Nathan was shot at very close range on the lower part of his left armpit.

On the other hand, Jerome denied killing Nathan and said that he was with his father in the tobacco field from 3 pm until midnight then went home to sleep. Jerome’s father and another person who was at the Tobacco fields corroborated his alibi. However the trial court was not convinced by Jerome’s alibi and found him guilty of murder. He was sentenced to imprisonment of 14 years 8 months and 1 day as minimum, up to 18 years 8 months and 1 day as maximum and to pay Nathan’s heirs, actual, exemplary and moral damages. The Court of Appeals (CA) sustained the award for damages but set aside the conviction for murder and instead found him guilty of homicide only because treachery was not proven. Jerome still went to the Supreme Court arguing that Mitch’s testimony was not credible as shown by her actions prior to the shooting and by the inconsistencies in her statements; that the CA erred in considering his three prior convictions for murder, homicide and attempted murder as bases for finding him guilty of homicide; and that his guilt has not been proven beyond reasonable doubt especially because he had a solid alibi and the paraffin test shows that he did not fire a gun as no gun powder was found in his hands.

The Supreme Court however did not sustain Jerome’s argument. Mitch actions prior to the incident and the alleged inconsistencies in her testimony do not affect her credibility in identifying Jerome as the killer. She was only a meter away when she saw Jerome shot Nathan. Besides, a kerosene lamp lighted the sala, thus enabling her to recognize Jerome.

While the CA mentioned his prior convictions for three crimes against persons, such was not the basis for finding him guilty because they were only mentioned to show that Mitch took his death threats seriously. The decisive factor for convicting Jerome was still the positive identification made by Mitch.

On the other hand for defense of alibi to prosper, Jerome must not only prove that he was not at the crime scene, but also that it was physically impossible for him to be there at the time the offense was committed. In this case, Jerome himself admitted that the distance between the Tobacco fields and Mitch’s house was only around 400 meters and it took only 8 minutes to traverse such path. Evidently, it was not impossible for him to be at the crime scene at the time of the offense. Besides, alibi cannot prevail over the positive identification of the accused by a credible witness who had no ill motive to falsely testify.

Anent the paraffin test, the absence of gunpowder is not conclusive proof that he has not fired a gun because traces of nitrates can easily be removed by the simple washing of one’s hands.

But Jerome is guilty of murder and not only homicide because treachery attended the killing. There is treachery (1) when the means employed would ensure the safety of the malefactor from retaliatory or defensive acts of the victim, and (2) the perpetrator deliberately and consciously adopted such means of execution. Here, Jerome walked back and forth on the barangay road, a few meters from the balcony of Mitch house. He waited for the perfect opportunity to execute his fiendish plot. So he deliberately and consciously employed such means of execution to ensure his own safety from any form of defense that Nathan might have used.

Jerome should therefore be convicted of murder and sentenced to reclusion perpetua plus the corresponding damages to be paid to the heirs of Nathan (Abalos vs CA, RTC and People, G.R. 125434, December 22, 1999)

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Email: attyjosesison@gmail.com

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