People vs. Verchez

Treachery cannot qualify a killing to murder absent proof that the means of execution gave the victim no opportunity to defend or retaliate and was deliberately or consciously adopted; and the increased penalty under Section 1 of P.D. No. 1866 for homicide or murder committed with an unlicensed firearm must be alleged in the information. Thus, a firefight in which the lawmen were prepared for resistance and the accused fired back on the spur of the moment is homicide, not murder; and an information that does not allege the homicide/murder qualifying circumstance supports only unqualified illegal possession.

The accused were occupants of a house in Queen’s Row Subdivision, Barangay Molino, Bacoor, Cavite, which had been reported as the hideout of a gang of suspected bank robbers. The case is governed by the Revised Penal Code’s provisions on homicide and frustrated homicide and by Section 1 of Presidential Decree No. 1866, which penalizes unlawful possession of firearms and ammunition and imposes a higher penalty when homicide or murder is committed with an unlicensed firearm.

According to the prosecution, on August 15, 1985, Capt. Raul Castaneda and Lt. Marcelo Garbo of the Special Operations Group (SOG) of the Central Organized Crime Task Force of the Philippine Constabulary/Integrated National Police (PC/INP) led a team of government agents in a surveillance operation on a house reported to be the hideout of a gang of suspected bank robbers at Queen’s Row Subdivision, Barangay Molino, Bacoor, Cavite. When a blue Toyota car came out of the subdivision, the government agents stopped it and introduced themselves to the driver as police officers. Virgilio Balane, the driver, identified himself as a member of the PC, and he was prevailed upon to accompany the government agents to the house where his companions were staying. The government agents, together with Balane, then proceeded to the house in four cars: the first car carried Sgts. Sangel and Monico Norcio; the second was driven by Lt. Marcelo Garbo; the third was driven by Capt. Castaneda; and the fourth was occupied by Sgt. Gana, Cpl. David Noora, and Balane. When the first car approached the house, the lawmen were met by a heavy volley of gunfire. The police disembarked, sought cover, and shouted to the occupants that they were members of the PC; the occupants responded with another barrage of bullets. As the government agents returned fire, a fire fight ensued. Three lawmen were hit: Sgt. Norcio died on the spot, while Cpl. Noora and PFC Wilfredo Pagsanjan sustained injuries but survived.

Lt. Garbo sought reinforcement from the Bacoor Police Department upon instructions of Capt. Castaneda and returned with about ten lawmen, who were deployed around the hideout. The fire fight resumed. With Balane in tow, Capt. Castaneda approached the house and negotiated for the surrender of its occupants. The men inside eventually surrendered, throwing their firearms outside the gate. They were later identified as Rolando Verchez, Romeo Aldave, Alfredo Mamuntag, Hector Mamuntag, and Gilbert Ang. Confiscated from them were one baby Armalite rifle (Serial No. 123658), one Armalite rifle (Serial No. 041868), one cal. 45 Remington pistol (Serial No. 222879) with ammunition, one revolver, cal. .38 Squire Bingham (with defaced serial number) and empty shells of a .38 caliber pistol, one shotgun 12 gauge (with defaced serial number), and five cartons of M-16 ammunitions. The police also recovered 114 empty shells of Armalite rifle bullets.

The accused were brought to the SOG headquarters at Camp Crame, Quezon City for investigation. With the assistance of Atty. Leopoldo de la Rosa, they executed their respective sworn statements. Verchez, Aldave, and Balane admitted being involved in several bank heists and admitted that Verchez fired the first shot at the policemen, which triggered the gun battle. All of them were subjected to paraffin tests, the results of which showed Balane, Aldave, and Verchez to be positive for nitrates while no traces of nitrates were found from Ang, Alfredo, and Hector Mamuntag. The Firearms and Explosives Unit of the PC issued a certification that the confiscated firearms were unregistered and unlicensed. The firearms were submitted to the PC Crime Laboratory for ballistics examination, which concluded that the .223 cal. fired cartridge cases marked “EM-1” to “EM-73” were fired from the .223 cal. Armalite Rifle with Serial No. 041868, while those marked “EM-79” to “EM-114” were fired from the .223 cal. Armalite Rifle with Serial No. RP-123658, and that the .45 cal. fired cartridge cases marked “EM-1” to “EM-5” were fired from the .45 cal. Remington Rand Pistol with Serial No. 2228779. Dr. Desiderio Moraleda of the PC Crime Laboratory, who conducted an autopsy on the cadaver of Sgt. Norcio, found the cause of death as “cardio-respiratory arrest due to shock and hemorrhage as a result of gunshot wound of the trunk.” The Information in Criminal Case No. B-85-216 charged illegal possession of firearms and ammunition but did not allege that homicide or murder was committed with the use of an unlicensed firearm.

The defense, on the other hand, testified that Verchez invited Balane on August 15, 1985 to visit his brother, who was then living in Queen’s Row Subdivision, Bacoor, Cavite. On their way, the two chanced upon Aldave, a “compadre” of Verchez’s brother, who joined them. They arrived at their destination at about 2:30 P.M. but found that Verchez’s brother was not at home; however, they saw Alfredo Mamuntag, the caretaker of the house, Alfredo’s son Hector, and Gilbert Ang, who were then visiting with Alfredo. Verchez decided to wait and drink liquor at the yard. At about 3:00 P.M., Balane drove away to buy cigarettes and “pulutan.” He had not driven far when a car blocked his way, with the occupants pointing their firearms at him. Another car arrived; one of its passengers approached Balane and frisked him. He was dragged out of the car, handcuffed, and blindfolded. After he was boxed on the face and stomach, he was pushed inside a car. Verchez saw several cars stop in front of the house and men in civilian clothes with firearms alight. One of the men ordered him to open the door. Suddenly, he heard a gunshot and Aldave, who was then at the back of the house, shouted that someone took a shot at him. After the two ran inside the house, they heard more gunshots. Verchez got a loaded M-16 Armalite rifle from one of the rooms and fired back at his attackers; Aldave looked around, found an Armalite rifle, and also fired back. Balane, still blindfolded and handcuffed, was ordered by Capt. Castaneda to advise his companions to surrender, so he shouted, “Sumuko na kayo si Vic ito.” However, someone also shouted, “Huwag na kayong sumurender, papatayin nalang namin kayo.” The firing continued for 15 minutes, after which the police entered the house. Verchez and Aldave, together with the other occupants, surrendered and were brought to Camp Crame. Verchez and Aldave claimed that at Camp Crame they were tortured into admitting participation in several bank robberies and forced into signing a prepared statement confessing their illegal activities, including having engaged the police officers in a fire fight on August 15, 1985.

The trial court gave faith and credence to the version of the police officers. It held that the evidence against Verchez and Aldave was sufficient to hold both liable and that it could not give credence to their claim that the lawmen fired the initial volley without warning, because there was no showing that Capt. Castaneda saw the persons inside the house to be sure of his target, because Castaneda and his men were not definite of the identity of the persons in the house, and because there was no motive, reason, or justification for Capt. Castaneda, an experienced military combat officer assigned in the battlefronts in Mindanao and in the province of Cagayan, to order his men to discharge their firearms indiscriminately. The trial court also found no evidence to support the claim that appellants were tortured and maltreated by the apprehending lawmen and crime investigators, and it ruled that there was sufficient evidence independent of the extrajudicial confessions to hold appellants guilty beyond reasonable doubt for the death of Sgt. Norcio and for the injuries sustained by Cpl. Noora.

• Credibility of Police Witnesses: Accused-appellants argued that the trial court erred in giving faith and credence to the testimonies of Capt. Castaneda, Lt. Garbo, and Sgt. Norcio regarding the encounter between the government agents and appellants.
• Admissibility of Extrajudicial Statements: Accused-appellants argued that the trial court erred in admitting in evidence their extrajudicial statements in violation of Section 12(3), Article III of the Constitution.
• Aggravating Circumstance of Rank: Accused-appellants argued that the trial court erred in considering against them the aggravating circumstance of disregard of respect due the offended party on account of his rank.
• Illegal Possession of Firearms: Accused-appellants argued that their conviction for illegal possession of firearms was erroneous because they used the firearms in legitimate self-defense and because they did not own the firearms, their possession of the same being “for a fleeting moment only and the firearm was not subject to his control and management.”

• Credibility of Witnesses: Whether the trial court erred in giving faith and credence to the testimonies of Capt. Castaneda, Lt. Garbo, and Sgt. Norcio regarding the encounter between the government agents and appellants.
• Admissibility of Extrajudicial Statements: Whether the trial court erred in admitting in evidence the extrajudicial statements of appellants in violation of Section 12(3), Article III of the Constitution.
• Treachery: Whether treachery qualified the killing of Sgt. Monico Norcio and the wounding of Cpl. David Noora to murder and frustrated murder.
• Aggravating Circumstance of Rank: Whether the aggravating circumstance of disregard of respect due the offended party on account of his rank may be considered against appellants.
• Illegal Possession of Firearms: Whether appellants are guilty of illegal possession of firearms under Section 1 of P.D. No. 1866 despite their claims of self-defense, lack of ownership, and fleeting possession.
• Increased Penalty under P.D. No. 1866: Whether the penalty for illegal possession of firearms may be increased because homicide or murder was committed with the use of an unlicensed firearm where the information did not allege that qualifying circumstance.

• Credibility of Witnesses: No. The trial court’s findings on witness credibility are entitled to great respect because it had the opportunity to examine the witnesses’ demeanor, and the SC adopted its factual findings.
• Admissibility of Extrajudicial Statements: No. The issue is not material because there is sufficient evidence independent of the extrajudicial confessions to sustain the conviction.
• Treachery: No. Treachery was not sufficiently established because the lawmen were prepared for resistance and the casualties occurred during, not before, the gun battle; there was no showing that appellants deliberately and consciously adopted their mode of attack.
• Aggravating Circumstance of Rank: No. There was no showing that appellants deliberately intended to offend or insult the rank of the victim, especially since the raiding police officers were not in uniform.
• Illegal Possession of Firearms: No. Section 1 of P.D. No. 1866 penalizes unlawful possession, which exists when there is no permit or license; the law does not prescribe a minimum period of holding, and appellants’ claims of self-defense and fleeting possession are without merit.
• Increased Penalty under P.D. No. 1866: No. The qualifying circumstance of homicide or murder committed with an unlicensed firearm must be alleged in the information, and it was not alleged in Criminal Case No. B-85-216.

• Credibility of Witnesses: The SC applied the well-settled rule that findings of the trial court on the credibility of a witness are entitled to great respect since it had the opportunity to examine his demeanor as he testified and could discern whether he was telling the truth (People vs. De Guzman, 216 SCRA 754 [1992]). The trial court gave credence to the police version and rejected the defense claim that the lawmen fired the initial volley without warning because there was no showing that Capt. Castaneda saw the persons inside the house, because the lawmen were not definite of the identity of the persons inside, and because there was no motive or justification for an experienced combat officer to order indiscriminate firing. The SC adopted the trial court’s factual findings.
• Admissibility of Extrajudicial Statements: The SC held that the issue of whether the extrajudicial confessions were admissible against appellants was not material. The trial court correctly ruled that there was sufficient evidence, independent of the confessions, to hold appellants guilty beyond reasonable doubt for the death of Sgt. Norcio and the injuries sustained by Cpl. Noora. The SC also noted that no evidence was presented by appellants to support their claim that they were tortured and maltreated by the apprehending lawmen and crime investigators.
• Treachery: For treachery to qualify the killing, two conditions must concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) the means of execution was deliberately or consciously adopted (People vs. Dela Cruz, 207 SCRA 632 [1992]). The lawmen knew they were dealing with a gang of bank robbers, were prepared for any resistance, and even brought Balane to facilitate surrender. The casualties on the lawmen’s side were suffered only after the first volley came from appellants and after the lawmen had left their vehicles and taken cover; Sgt. Norcio was killed and Cpl. Noora was wounded during, not before, the gun battle. There was no showing that appellants deliberately and consciously adopted their mode of attack, planned to ambush the lawmen, or knew the lawmen were coming; they were caught by surprise and fired back on the spur of the moment. Absent treachery, appellants could only be convicted of homicide for Sgt. Norcio’s death and frustrated homicide for Cpl. Noora’s wounding.
• Aggravating Circumstance of Rank: The aggravating circumstance of disregard of the respect due the offended party on account of his rank requires a showing that appellants deliberately intended to offend or insult the rank of the victim. There was no such showing, especially because the raiding police officers were not even in uniform. The circumstance was therefore unavailing.
• Illegal Possession of Firearms: Section 1 of P.D. No. 1866 penalizes, among others, the unlawful possession of any firearm or ammunition. Possession becomes unlawful when there is no permit or license for holding the firearm, and the law does not prescribe a minimum period of time for holding the firearm before possession can be illegal. Appellants’ claim that they did not have control or management of the firearms was without merit: the records showed they knew where to find the firearms, and both Verchez and Aldave testified that they sought cover inside separate bedrooms when the lawmen fired, then retrieved the firearms from the cabinet in their respective rooms. Their story that finding the firearms in the cabinets was a happenstance was incredible. Their claim of legitimate self-defense and lack of ownership did not negate unlawful possession.
• Increased Penalty under P.D. No. 1866: Paragraph 2 of Section 1 of P.D. No. 1866 imposes the penalty of death if homicide or murder is committed with the use of an unlicensed firearm. This qualifying circumstance must be alleged in the information. In Criminal Case No. B-85-216, it was not alleged. In People vs. Tiozon, 198 SCRA 368 (1991), the SC held that because homicide or murder increases the penalty under Section 1 of P.D. No. 1866, the prosecution must allege in the information and prove by the required quantum of evidence the violation of said section and, more specifically, the use of an unlicensed firearm and the commission of homicide or murder. The trial court therefore erred in finding appellants guilty of violating Section 1 of P.D. No. 1866 “resulting to murder” and in sentencing them to reclusion perpetua. For the unqualified offense, the SC applied the penalty of reclusion temporal maximum to reclusion perpetua; with no aggravating or mitigating circumstances, it imposed the medium period of 18 years, 8 months and 1 day to 20 years of reclusion temporal, and under the Indeterminate Sentence Law fixed the minimum at 17 years, 4 months and 1 day and the maximum at 20 years of reclusion temporal.

• Treachery — Requires (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate, and (b) the deliberate or conscious adoption of that means. The SC found neither condition in a gun battle where the lawmen were prepared for resistance and the accused fired back on the spur of the moment after being caught by surprise.
• Aggravating circumstance of disregard of respect due the offended party on account of rank — Requires deliberate intent to offend or insult the victim’s rank. It cannot be appreciated where the raiding police officers were not in uniform and no such intent was shown.
• Unlawful possession of firearms under P.D. No. 1866 — Possession is unlawful when there is no permit or license; the law does not require a minimum period of holding. Control and management existed where the accused knew where the firearms were kept and retrieved them from cabinets in their rooms.
• Qualifying circumstance under Section 1 of P.D. No. 1866 — If homicide or murder is committed with an unlicensed firearm, the higher penalty applies, but the prosecution must allege that circumstance in the information and prove it; absent allegation, the accused can be convicted only of unqualified illegal possession.
• Credibility of witnesses — Findings of the trial court on witness credibility are entitled to great respect because it had the opportunity to examine the witness’s demeanor and discern truthfulness.

• “For the qualifying circumstance of treachery to be present, two conditions must concur: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution was deliberately or consciously adopted (People v. Dela Cruz, 207 SCRA 632 [1992]).” — The SC states the two requisites of treachery and uses them to reject the RTC’s murder qualification.
• “There is no showing that appellants deliberately and consciously adopted their mode of attack. Neither is there any showing that they planned to ambush the lawmen, much less that they knew that the lawmen were coming. What is apparent is that appellants were caught by surprise by the lawmen, hence, acting on the spur of the moment, they fired back.” — The SC concludes that treachery was absent because the accused did not deliberately adopt a mode of attack and were surprised by the lawmen.
• “The possession of a firearm becomes unlawful when there is no permit or license for its holding. The law does not prescribe a minimum period of time for the holding of the firearm before its possession can be illegal.” — The SC rejects the defense that possession was only for a fleeting moment and therefore not illegal.
• “This qualifying circumstance must, however, be alleged in the information, which was not done in Criminal Case No. B-85-216.” — The SC holds that the higher penalty under P.D. No. 1866 for homicide or murder committed with an unlicensed firearm cannot be imposed absent allegation in the information.

• People vs. De Guzman, 216 SCRA 754 [1992] — Followed on the rule that trial court findings on witness credibility are entitled to great respect.
• People vs. Dela Cruz, 207 SCRA 632 [1992] — Followed on the two requisites of treachery.
• People vs. Simon, 209 SCRA 148 [1992] — Followed in fixing the indemnity for Sgt. Norcio’s death at P50,000.00.
• People vs. Tiozon, 198 SCRA 368 (1991) — Followed on the necessity of alleging in the information the homicide or murder qualifying circumstance under Section 1 of P.D. No. 1866.

• Section 12(3), Article III of the Constitution — Appellants invoked it against the admission of their extrajudicial statements; the SC did not resolve admissibility because there was sufficient evidence independent of the confessions, and no evidence supported the torture claim.
• Section 1, Presidential Decree No. 1866 — Penalizes unlawful manufacture, sale, acquisition, disposition, or possession of firearms or ammunition; the second paragraph imposes death if homicide or murder is committed with an unlicensed firearm. The SC applied the first paragraph to convict appellants of unqualified illegal possession and held the second paragraph unavailable because the qualifying circumstance was not alleged in the information.
• Article 249, Revised Penal Code — Prescribes reclusion temporal for homicide; applied after treachery was rejected, resulting in conviction for homicide instead of murder.
• Article 250, Revised Penal Code — Prescribes a penalty one degree lower than that for consummated homicide for frustrated homicide; applied to the wounding of Cpl. Noora.
• Articles 64 and 65, Revised Penal Code — Used to determine the medium period for the unqualified illegal possession offense because no aggravating or mitigating circumstances were present.
• Indeterminate Sentence Law, as amended by Act No. 4225 — Applied to fix the minimum and maximum terms for homicide, frustrated homicide, and unqualified illegal possession of firearms.
• Article 70, Revised Penal Code — The SC ordered the penalties to be served in accordance with this article.