People of the Philippines vs. Efren Dulos

A person subject to military law who is separated from active service before court-martial jurisdiction has attached to his person falls within the exception to the exclusive court-martial jurisdiction under Presidential Decree No. 1850 and may be tried by the civil courts; and treachery attends a killing where the unarmed victim is shot frontally while kneeling with his hands raised in surrender.

Efren Dulos was a member of the 12th MSSU AFP (Military Southern Support Command, Armed Forces of the Philippines) at the time of the incident, a status that framed the threshold question of whether the civil courts or the courts-martial had jurisdiction over the offense charged. The victim, Apolinario "Paul" Tamse, was a civilian and the boyfriend of Susan Almazar, one of two professional entertainers engaged by Dulos at a Cotabato City hotel on the night in question. Presidential Decree No. 1850, as amended by Presidential Decree No. 1952, supplied the statutory backdrop by vesting exclusive jurisdiction in courts-martial over crimes committed by members of the Armed Forces, subject to an express exception allowing civil courts to assume jurisdiction in defined circumstances.

At around ten o'clock in the evening of March 15, 1987, Susan Almazar and Alice Tipudan, both professional entertainers, were sitting at the lobby of the New Imperial Hotel in Cotabato City, waiting for prospective clients. Moments later, a certain Mr. Gara, a Military Police assigned at the hotel as watchman, approached them and told them that the accused-appellant, Efren Dulos, had some male guests who wished to be entertained. They were thereafter introduced to Dulos, and both parties agreed to a charge of P100.00 each for Susan and Alice as fee for their services. The parties then proceeded to the Sampaguita Disco located at the Old Imperial Hotel to join Dulos's guests.

Alice Tipudan left early and decided to wait for Susan Almazar at the lobby of the New Imperial Hotel. Susan, who stayed until midnight to entertain Dulos, decided to check in with one of the latter's guests at the upper floor of the disco house for an additional fee of P500.00. When she received the money, she changed her mind, thereby spawning a fight with her customer. When Alice learned of the disagreement, she requested MP Gara to intervene and buy peace. In the meantime, Susan came down to the lobby of the Imperial Hotel to meet her boyfriend, Apolinario "Paul" Tamse, who was waiting for her. Upon hearing about the reneged deal, the irate Dulos confronted Susan and Paul. Paul apologized to Dulos, saying that his girlfriend did not accept intimate dates. Then, they, together with Alice and another female companion, proceeded to go home to the Federal Lodging House, which was only a few meters away from the hotel.

Dulos, angered by the incident, quickly followed the group. Upon noticing Dulos, who then drew his .45 caliber pistol, Alice shouted a warning of the threat to Susan and Paul, who were walking ahead. They tried to run but were overtaken by Dulos. Dulos demanded the return of his money. Susan handed the P100.00 to Dulos, at the same time shielding Paul with her body. She denied having received P500.00 from Dulos's guest lest her boyfriend would find out that she had agreed to check in with a customer. Susan pleaded with Dulos, whose gun was still pointed towards them, and tried to grapple with him for possession of the same, but she was violently pushed and fell to the ground. At this juncture, Paul pleaded for mercy by kneeling down and raising both his hands up. His plea fell on deaf ears, as Dulos fired his gun, hitting Paul on the left breast. Paul fell face down to the ground. Dulos then fired another shot at Paul's back, killing him on the spot.

The autopsy conducted on the victim revealed a wound with smooth edges at the chest along the left anterior clavicular line at the level of the fourth intercostal space; a wound with rough edges just above the left nipple; a wound with smooth edges at the left palm; a wound with rough edges at the posterior portion of the base of the left thumb; and a wound with smooth edges at the post axillary line three inches below the armpit. The cause of death was cardio-respiratory arrest secondary to massive hemorrhage due to gunshot wounds.

For his part, Dulos claimed that he acted in self-defense. He contended that there was unjust provocation on the part of the deceased when the latter refused to refund the P600.00 of the accused and instead tried, with his girlfriend Susan Almazar, to run away to avoid returning the amount; that there was unlawful aggression on the part of the deceased when he tried to grab the pistol of the accused; and that there was reasonable necessity of the means used by the accused to repel or prevent the aggression. He further claimed that after the incident he went to Camp Siongco, Dinaig, Maguindanao, and surrendered his .45 caliber pistol to a certain Major Bermones, one of his guests at the Old Imperial Hotel. On the witness stand, however, he admitted that he was not placed under custody by the military authorities and was free to roam around as he pleased, and that he could even leave Camp Siongco at will.

The trial court found that the prosecution eyewitnesses, Susan Almazar and Alice Tipudan, categorically testified that when Dulos fired his first shot, Paul Tamse was on his knees with his hands up, pleading for mercy, and that while the victim was already lying prostrate on the ground in a prone position, Dulos pumped one more bullet into his back. It further found that the prosecution failed to establish the qualifying circumstance of evident premeditation, there being no showing that the criminal act of shooting the deceased was preceded by cool thought and reflection on the part of the accused within a space of time sufficient to arrive at a calm judgment.

• Jurisdiction: Petitioner contended that the trial court did not acquire jurisdiction to try him and that the decision rendered against him should be declared null and void, because as a member of the 12th MSSU AFP he should be tried by the military courts pursuant to Presidential Decree No. 1850 and not by the civil courts.
• Murder versus Homicide and Penalty: Petitioner maintained that the trial court erred in convicting him of murder and not homicide and in sentencing him to reclusion perpetua despite the suddenness of the killing, the proofs of unlawful aggression on the part of the deceased, the lack of sufficient provocation on his part, and the presence of the mitigating circumstance of voluntary surrender.
• Self-Defense: Petitioner argued that the trial court erred in not considering self-defense, or at least incomplete self-defense, in his favor, invoking unjust provocation on the part of the deceased, unlawful aggression when the deceased allegedly tried to grab his pistol, and reasonable necessity of the means used to repel the aggression.

• Jurisdiction: Whether the Regional Trial Court erred in assuming jurisdiction over the person of the accused-appellant, a member of the Armed Forces of the Philippines at the time of the incident, instead of the courts-martial under Presidential Decree No. 1850.
• Qualifying Circumstance and Penalty: Whether the trial court erred in convicting the accused-appellant of murder rather than homicide and in sentencing him to reclusion perpetua, notwithstanding the alleged suddenness of the killing, the alleged unlawful aggression of the deceased, the alleged lack of sufficient provocation on the part of the accused, and the mitigating circumstance of voluntary surrender.
• Self-Defense: Whether the trial court erred in not appreciating self-defense, or at least incomplete self-defense, in favor of the accused-appellant.

• Jurisdiction: No. The civil court properly exercised jurisdiction, since the accused was discharged from active military service without court-martial jurisdiction having attached to his person, and the issue of jurisdiction over his person was never raised in the trial court and cannot be raised for the first time on appeal.
• Qualifying Circumstance and Penalty: No. Treachery was established beyond reasonable doubt, the victim having been shot frontally while kneeling with his hands raised in surrender and then shot in the back while prostrate, and the mitigating circumstance of voluntary surrender was not appreciated because there was no spontaneous and unconditional submission to the authorities.
• Self-Defense: No. The plea of self-defense was not sustained, the accused having presented no evidence to support it and the physical evidence having negated its elements.

• Jurisdiction: Section 1 of Presidential Decree No. 1850, as amended by Presidential Decree No. 1952, vests exclusive jurisdiction in courts-martial over criminal offenses committed by members of the Armed Forces of the Philippines, whether or not done in the actual performance of their official duties. The accused-appellant's case, however, falls under the exception contained in the proviso of the same section, which allows civil courts to assume jurisdiction over criminal offenses and over the person of the accused where the latter was discharged from active military service without military jurisdiction having duly attached to him before his separation. The accused himself conceded that he was readily discharged from active military service as soon as he was made to answer for the criminal offense, without any initiative on the part of the military to try and prosecute him. It was therefore the civil court which first acquired jurisdiction over his person. His reliance on Abadilla vs. Ramos was misplaced: in that case, Colonel Rolando Abadilla was dropped from the roll of officers for alleged participation in several criminal offenses, but before his separation from the service he was subjected to military investigation, so that military jurisdiction had fully attached to his person; in contrast, when the accused-appellant was discharged from the service, no initiatory proceedings nor any investigation were conducted, and consequently military jurisdiction did not attach to his person. Independently of the foregoing, the records revealed that the issue of jurisdiction was not raised by the accused-appellant in the trial court. Following People vs. Lozano, the question of jurisdiction over the person, not having been raised in the trial court, cannot be raised on appeal. Moreover, a party is estopped from assailing the jurisdiction of a court after voluntarily submitting himself to it; the accused-appellant's appearance at the arraignment and his plea of not guilty signified that he voluntarily submitted himself to the jurisdiction of the court, so that jurisdiction was acquired over his person and continued until the termination of his case.
• Qualifying Circumstance and Penalty: The accused-appellant questioned the findings of fact of the court a quo, but findings of the trial court as to the credibility of witnesses are accorded great weight and respect by the appellate court, and will not be disturbed unless there is a showing that the trial court had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have altered the outcome of the case. On treachery, the accused-appellant maintained that the horizontal trajectory of the bullet wound and the fact that the victim was facing him when the gun was discharged negated its existence. This contention was rejected: there is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come, because the victim is clearly in a defenseless position. The prosecution eyewitnesses categorically testified that when the accused-appellant fired his first shot, Paul Tamse was on his knees with his hands up, pleading for mercy; evidently, the victim was in a defenseless position when he was shot. While the victim was already lying prostrate on the ground in a prone position, the accused-appellant pumped one more bullet into his back. This constituted treachery and qualified the offense to murder. The accused-appellant's lengthy argument on the absence of the qualifying circumstance of evident premeditation served no purpose, as the trial court never considered such circumstance against him and in fact declared that the prosecution failed to establish and prove its existence. As to voluntary surrender, the requisites are that it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. Here, there was no conscious effort on the part of the accused-appellant to voluntarily surrender to the military authorities when he went to Camp Siongco, Dinaig, Maguindanao, after the fatal incident; as he himself admitted in his testimony, he was not placed under custody by the military authorities and was free to roam around as he pleased, and could even leave Camp Siongco at will. He went to the said camp to take up residence, not to voluntarily surrender to the authorities. His claim that he surrendered his .45 caliber pistol to a certain Major Bermones was not substantiated by evidence; and even assuming that the gun was surrendered, that fact could not be appreciated in his favor, since, following People vs. Palo, where an accused merely surrenders his person to the authorities, there is no voluntary surrender.
• Self-Defense: The accused-appellant's averments that he shot Paul Tamse in self-defense were belied by the evidence adduced by the prosecution. He did not present any evidence to sustain his plea of self-defense. Not only were the elements of self-defense absent, but the claim was likewise negated by the physical evidence. The accused-appellant suffered no harm or injury physically; the number and nature of the wounds inflicted on the victim proved that the attack came from the accused-appellant and that the victim had no chance to defend himself, as he was not armed at the time of the incident. In addition, the victim never manifested a posture of belligerence; when he saw the accused-appellant approaching him menacingly with a gun, Apolinario knelt down, raised his two hands, and pleaded with the accused-appellant to spare his life. All told, no cogent reason existed to reverse the assailed judgment of conviction.

• Court-Martial Jurisdiction and the Separation Exception under P.D. No. 1850 — Section 1 of Presidential Decree No. 1850, as amended by Presidential Decree No. 1952, vests exclusive jurisdiction in courts-martial over crimes committed by members of the Armed Forces of the Philippines and the Integrated National Police, whether or not committed in the performance of official duties. The same provision carves out an exception: the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act No. 408, as amended, or when court-martial jurisdiction over the person of the accused military personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand, unless otherwise provided by law. The Court applied the exception, holding that because the accused was discharged from active service without any prior military investigation or initiatory proceeding, military jurisdiction never attached to his person and the civil court properly took cognizance of the case.
• Waiver and Estoppel as to Jurisdiction over the Person — The question of jurisdiction over the person of the accused, if not raised in the trial court, cannot be raised for the first time on appeal; and a party is estopped from assailing the jurisdiction of a court after voluntarily submitting himself to it. The Court applied this rule to the accused-appellant, whose appearance at arraignment and plea of not guilty constituted voluntary submission to the jurisdiction of the trial court.
• Treachery by Frontal Shooting of a Defenseless Victim — There is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come, because the victim is thereby rendered defenseless. The Court applied this doctrine where the victim was on his knees with his hands raised in surrender when the first shot was fired, and was shot a second time in the back while already lying prostrate, holding that the circumstance qualified the killing to murder.
• Requisites of Voluntary Surrender — For voluntary surrender to be appreciated as a mitigating circumstance, it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. The Court found the requisites absent where the accused merely took up residence at a military camp, was free to roam and to leave at will, and was never placed under custody.
• Self-Defense: Burden of Proof and Negation by Physical Evidence — The accused who invokes self-defense bears the burden of proving its elements, and the plea is unavailing where no evidence sustains it and the physical evidence negates it. The Court relied on the absence of any injury to the accused and on the number and nature of the wounds inflicted on the unarmed victim, which proved that the attack came from the accused and that the victim had no chance to defend himself.
• Credibility of Witnesses and Finality of Trial Court Findings — Findings of the trial court as to the credibility of witnesses are accorded great weight and respect by the appellate court and will not be disturbed unless there is a showing that the trial court had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have altered the outcome of the case.

• "the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached before hand unless otherwise provided by law" — This is the proviso of Section 1 of Presidential Decree No. 1850, as amended, which the Court identified as the exception that allowed the civil court to assume jurisdiction over the accused after his discharge from active military service without any prior military investigation.
• "There is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come." — This passage states the ratio decidendi on the qualifying circumstance, rejecting the accused's argument that the horizontal trajectory of the bullet wound and the fact that the victim was facing him negated treachery.
• "it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture." — This is the canonical formulation of the requisites of voluntary surrender, quoted by the Court in rejecting the accused's claim that his stay at Camp Siongco and alleged turnover of his firearm amounted to a mitigating circumstance.
• "The accused-appellant suffered no harm or injury physically. The number and nature of the wounds inflicted on the victim prove that the attack came from the accused-appellant and that the victim had no chance to defend himself as he was not armed at the time of the incident." — This passage articulates the Court's reliance on physical evidence in rejecting the plea of self-defense, a recurring formulation in Philippine jurisprudence on the sufficiency of the evidence for self-defense.

• Abadilla vs. Ramos, 156 SCRA 92 [1987] — Distinguished. In that case, Colonel Rolando Abadilla was subjected to military investigation before his separation from the service, so that military jurisdiction had fully attached to his person; the accused-appellant, by contrast, was discharged without any initiatory proceeding or investigation, hence military jurisdiction never attached.
• People vs. Lozano, 206 SCRA 234, 242 [1992] — Followed. The Court cited this case for the rule that the question of jurisdiction over the person, not having been raised in the trial court, cannot be raised on appeal, and for the rule that a party is estopped from assailing the jurisdiction of a court after voluntarily submitting himself to it.
• People vs. Palo, 101 Phil. 963 [1957] — Followed. The Court relied on this case for the rule that where an accused merely surrenders his person to the authorities, there is no voluntary surrender.
• People vs. Madali, 188 SCRA 67 [1990] — Cited, among other cases, for the rule that there is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come.
• People vs. Devaras, 205 SCRA 676, 695 [1992] — Cited for the requisites of voluntary surrender, namely, that it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities.
• People vs. Binondo, 214 SCRA 764 [1992] — Cited for the proposition that the plea of self-defense is negated where the accused suffered no physical harm and the number and nature of the wounds inflicted on the victim prove that the attack came from the accused.
• People vs. Villanueva, 225 SCRA 353 [1993] — Cited, among other cases, for the rule that findings of the trial court as to the credibility of witnesses are accorded great weight and respect by the appellate court.
• People vs. Dela Torre, 198 SCRA 663 [1991] — Cited for the rule that the appellate court will not disturb the factual findings of the lower court absent a showing that the trial court had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have altered the outcome of the case.

• Section 1, Presidential Decree No. 1850, as amended by Presidential Decree No. 1952 — Vests exclusive jurisdiction in courts-martial over crimes committed by uniformed members of the Integrated National Police and persons subject to military law under Article 2 of the Articles of War, but provides that the case shall be tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act No. 408, as amended, or when court-martial jurisdiction over the person of the accused can no longer be exercised by virtue of separation from active service without jurisdiction having duly attached beforehand, unless otherwise provided by law. The Court applied the exception in favor of civil court jurisdiction because the accused was discharged from active service without any prior military investigation.
• Article 2, Commonwealth Act No. 408 (Articles of War) — Defines the persons subject to military law. The provision was referenced in Section 1 of Presidential Decree No. 1850 as the basis for identifying those over whom courts-martial exercise exclusive jurisdiction, and thus framed the threshold question of whether the accused fell within that class.
• Article 38, Commonwealth Act No. 408 (Articles of War) — Governs the prescription of court-martial jurisdiction over offenses. It was referenced in the proviso of Section 1 of Presidential Decree No. 1850 as one of the two circumstances that return a case to the civil or judicial authorities.

Cruz, Davide, Jr., Bellosillo, and Quiason, JJ.