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People vs. Gamboa

*
G.R. No. 91374. February 25, 1991.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOHN

GABRIEL GAMBOA, defendant-appellant.

Criminal Law; Murder; Evidence; Credibility of witnesses;

Contradicting statements of prosecution witnesses on minor details rather
than affect the credibility of these witnesses, are badges of candor.—By and
large, the Court is not persuaded that the appellant’s claim of contradictions
and inconsistencies on the part of the prosecution witnesses puts into serious
doubt their credibility. Different persons who witnessed an incident from
different angles and situations could not be expected to give uniform details
of what they saw and heard. Such minor discrepancies and inconsistencies
are to be expected because of the human differences in perception. Such
contradicting statements are on minor details, as hereinabove discussed, and
rather than affect the credibility of the witnesses, the same are badges of

_______________

* FIRST DIVISION.

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People vs. Gamboa

candor.
Same; Same; Same; Same; Delay of the witnesses to immediately
report the identity of the offender to the police investigators does not affect
their credibility especially so when the witnesses are related to the victim.—
It is quite understandable when the witnesses do not immediately report the
identity of the offender after a startling occurrence more especially when
they are related to the victim as they just had a traumatic experience. More
so as in the case of Major Impas who is the victim’s father and Soledad, his
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common-law wife. Nevertheless, a delay of about a few hours before the

identification of the offender by the prosecution witnesses does not thereby
affect their credibility.
Same; Same; Same; Confession; Verbal confession is inadmissible
where the confession was extracted through maltreatment; Case at bar.—
The inadmissibility of the alleged verbal confession of the appel-lant is
raised on the ground that he was maltreated as a result of which he suffered
twenty-seven injuries in the form of contusions, lacerations and abrasions. It
does not appear, however, that the prosecution proposed to rely on this
alleged confession of the appel-lant, or that the trial court considered the
same at all in the resolution of the case. If it were to be considered at all, it
would be worthless because of the undeniable fact that the appellant was not
only arrested without a warrant and entry into his house was effected
without a search warrant, but worse, he was maltreated since his arrest so
much so that he suffered multiple injuries. The police investigators
responsible for this manhandling should be investigated and held to account.
Such involuntary confession cannot help the case of the prosecution. It is a
stain in the record of the law enforcement agents who handled the case.
Same; Same; Same; Seizure of the shotgun without search warrant
unless it falls under the exception violates accused constitutional rights.—
The Court observes that the police investigators confiscated the shotgun
from the premises of the residence of the appellant without a search warrant.
Such violation of the constitutional rights of a person should be investigated
and inquired into.
Same; Same; Same; Ballistic examination shows that it was fired from
the very shotgun of the appellant.—-The Court is not persuaded that the
police investigators in this case would willingly allow themselves to be
instruments to frame the appelant for so serious a crime as murder. It
appears that the three empty shells were actually recovered from the vicinity
of the scene of the crime. The ballistics

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People vs. Gamboa

examination shows that it was fired from the very shotgun of the appellant.
This evidence corroborates the theory of the prosecution, very strongly, that
the appellant was the assailant of the victim.
Same; Same; Even if the shotgun and the results of the ballistic
examination are disregarded, there is adequate evidence to justify
conviction.—Even if the Court disregards the shotgun as having been
illegally secured as well as the results of its ballistic examination in relation
to the empty shells, still there is adequate evidence in the record to justify a

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verdict of conviction. Indeed, the Court did not even consider it necessary to
inquire into the motive of the appellant in the light of his positive
identification by the prosecution witnesses.’
Same; Same; Same; Paraffin test; Paraffin test conducted without the
presence of the accused’s lawyer does not violate the right against self-
incrimination.—As to the paraffin test to which the appellant was subjected
to he raises the question, under the sixth assigned error, that it was not
conducted in the presence of his lawyer. This right is afforded to any person
under investigation for the commission of an offense whose confession or
admission may not be taken unless he is informed of his right to remain
silent and to have competent and independent counsel of his own choice.
His right against self-incrimination is not violated by the taking of the
paraffin test of his hands. This constitutional right extends only to
testimonial compulsion and not when the body of the accused is proposed to
be examined as in this case. Indeed, the paraffin test proved positively that
he just recently fired a gun. Again, this kind of evidence buttresses the case
of the prosecution.

APPEAL from the decision of the Regional Trial Court of Cebu

City, Br. 8.

The facts are stated in the opinion of the Court.

     The Solicitor General for plaintiff-appellee.
     Josefa K. Cauton for defendant-appellant.

GANCAYCO, J.:

Essential in the success of the prosecution of an offense is the proof

of the identity of the offender. This is usually attained through the
testimony of eyewitnesses during, before, or even after the
commission of the offense. In the absence of such primary evidence
the prosecution generally falls back on such

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People vs. Gamboa

other evidence as the ballistic examination of the murder weapon, a

handwriting expert, the extrajudicial confession or similar resources.
Otherwise, circumstantial evidence is resorted to which consists in
the piercing together of tiny bits of evidence with a view towards
ascertaining the accused as the person responsible for the
commission of the offense.
In the case now before this Court the defendant-appellant John
Gabriel Gamboa was charged with the crime of murder together
with Miguel Celdran in the Regional Trial Court of Cebu. After
arraignment but during the trial, the case against Celdran was

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dismissed. Thereafter, a decision was rendered on August 30, 1989,

finding Gamboa guilty of the crime of murder as penalized under
Article 248 of the Revised Penal Code and imposing upon him the
penalty of reclusion perpetua. He was also ordered to indemnify the
heirs of the deceased in the amount of P30,000.00, with costs against
him. The fatal weapon, a shotgun, was ordered forfeited in favor of
1
the government.
The defendant-appellant interposed this appeal from said
judgment alleging that the trial court committed the following
errors:

“I

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE

TESTIMONIES OF THE PROSECUTION WITNESSES CRISTINA
SOLEDAD, ENRICO ACRE AND MARIO GASCON.

II

THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-

APPELLANT HAD BEEN POSITIVELY IDENTIFIED AS THE
ASSAILANT OF THE VICTIM RENE IMPAS.

III

THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-

APPELLANT HAD CONFESSED TO OR ADMITTED THE KILLING.

_______________

1 Pages 41 to 52, rollo.

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IV

THE TRIAL COURT ERRED IN NOT REJECTING THE ALLEGED

MURDER WEAPON (EXHIBIT “A”) AS INADMISSIBLE EVIDENCE.

THE TRIAL COURT ERRED IN HOLDING THAT EXHIBIT “A”

WAS THE ACTUAL MURDER WEAPON.

VI

THE TRIAL COURT ERRED IN NOT REJECTING THE PARAFFIN

TEST RESULTS AS INADMISSIBLE EVIDENCE.

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VII

THE TRIAL COURT ERRED IN NOT ACQUITTING THE

2
ACCUSED-APPELLANT.”

At around 1:15 o’clock in the morning of August 21, 1988, Cristina

Soledad, common-law wife of Rene Impas, was conversing with the
latter inside a bedroom in Rene’s house located at John Avenue,
Cebu City. Suddenly someone kicked open the door and Soledad
saw the appellant and Celdran. From a standing position the
appellant fired his shotgun at Rene. Rene was hit on the right side of
the chest so he slid slightly, his head leaning on the wall. ‘The
appellant fired a second shot hitting the victim on the abdomen. The
victim fell face upward on the bed and died immediately.
Soledad shouted for help. Rico Acre, a tenant in the same house,
responded. He entered the room as the appellant went out of the
house. The former fired a third time.
Acre noticed the victim having difficulty in breathing, so he ran
out of the house and shouted for help. Mario Gascon, a neighbor,
came and together with Acre they lifted the victim and loaded him in
the car of the victim’s father, police Major Impas, which was parked
in front of the house.
As Gascon stepped out of his house to extend assistance, he

_______________

2 Pages 66 to 67, rollo.

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People vs. Gamboa

saw the appellant and another person running towards a yellow car.
The appellant was still holding the shotgun then. Soledad, together
with Acre, Gascon and Maj. Impas, who was living in the house
nearest to the victim’s house, boarded the latter’s car and brought the
victim to the Southern Island Hospital, Cebu City.
The medico legal report of Dr. Jesus Cerna of the PC-INP, Cebu
showed that the victim suffered the following gunshot wounds:

“ ‘Shot gun wounds:

(1) ENTRANCE. ovaloid, 2.0 x 1.8 cm., with 5 stray pellets wounds of
entrance around, in an area of the chest, right, 5.5 x 5.0 cm., edges
inverted, chest right anterior aspect, 6.0 cm. from the anterior
median line and 128.0 cm. above right heel; directed backward,
downward and medially, involving skin and the underlying soft
tissues, into thoracic cavity, lacerating extensively the lungs, upper

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and lower lobes, right extensively and the ascending orta, and
finally a plastic wad was embeded and recovered from the upper
lobe of right lung and three (3) pellets were recovered from the soft
tissue of the back, thoracic region, left, 5.0 cm. from the posterior
median line and 127.0 cm. above left heel.
‘2. ENTRANCE. (pellets wounds) six in numbers, of varying sizes,
ranging from 0.6 x 0.5 cm. to 0.5 x 0.4 cm., edges inverted,
dispersed in an area of the abdomen, anterior aspect, right, 5.0 x 4.5
cm.) 7.5 cm. from the anterior median line and 108.0 cm. above
right heel, directed backward, upward and laterally involving skin
and the underlying soft tissues, into a thoracic abdominal cavity,
lacerating extensively portion of small and large intestine, liver, and
finally 4 pellets wound were embeded and recovered from the soft
tissues back, left thoracic abdominal region, 10.0 cm. from the
posterior median line and 107.0 cm. above left heel, (one exited).
‘(3) ENTRANCE. ovaloid, 9.0 x 3.0 cm. irregular in shape, edges
inverted, hand, posterior aspect, right; directed forward, upward,
thru and thru.

Heart: auricular and venticular chambers, filled with dark-red liquid and
clotted blood, with normal myocardium.
‘Gastro-intestinal tract and other visceral organs pale.
Stomach, empty.
Hemothorax, approximately 1500 cm.
Hemoperitoneum, approximately 1000 cc.
CAUSE OF DEATH:

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3
Shot wounds, chest, abdomen and hand, right.’ ”

Under the first assigned error, the appellant raises the issue relating
to the credibility of the prosecution witnesses in that their
testimonies are full of inconsistencies which elicit doubt as to their
truthfulness.
In the case of Soledad, the latter allegedly testified that the
appellant shot the victim twice, while the victim’s father testified
that he heard three successive shots. There is no inconsistency here.
It was established that the appellant shot the victim twice while
inside the house and fired the third shot when he was already outside
the house. This accounts for the three shots heard by Major Impas.
The appellant also stated that Soledad testified on direct
examination that when the victim was hit by the first shot his body
leaned on the wall but on cross examination, she said that the victim
was lying flat on the bed after the first shot. Whether the victim was
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leaning on the wall or lying down after the first shot is of no material
consequence. The fact remains that Soledad saw the appellant shoot
the victim twice with a shotgun.
Another alleged contradiction is that Soledad said she knew Acre
to be a cousin of the victim but Acre himself denied such
relationship. Again such inconsistency, if it is indeed an
inconsistency at all, is on a minor matter.
The appellant states that while Acre testified that at the time of
the shooting he could clearly be seen from the victim’s room,
Soledad never mentioned having seen Acre at or near the door of the
victim’s room. It is also indicated that while Acre said that appellant
made some remarks to him in a loud voice before the shooting,
Soledad on the other hand testified that she did not hear any
statement from the appellant before the shooting.
Suffice it to state that at the time of the shooting, the appel-lant
and Celdran were standing at the door, effectively blocking the view
outside the room, hence Soledad did not see Acre. Moreover, at the
time Soledad’s attention at that moment was focused on her
common-law husband who was shot twice and who fell on the bed.
She was a witness to a startling occurrence.

_______________

3 Exhibit “G”, page 407, records.

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People vs. Gamboa

It is not improbable that because of shock she did not hear any
remarks made by the appellant outside the room.
The appellant makes much capital of the fact that Acre did not
reveal the identity of the appellant to the victim’s father when they
were together in the car on the way to the hospital. This is
understandable considering that Soledad had already revealed the
appellant’s identity to Major Impas when they boarded the car.
There was no need for Acre to give the same information to the
victim’s father.
In the case of Modesto Gascon, it is contended that he could not
have seen the appellant running away from the scene of the shooting
since even before Gascon went down from his house, the appellant
was already running towards the get-away car and so it was
allegedly impossible for Gascon to identify the appellant.
On cross-examination, Gascon stated that after hearing gun-shots
he ran out of his house to ascertain where the shots came from. He
ran to the corner or to the “second bend” outside the house of the
victim’s father and he saw the appellant at the “second bend.”
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Gascon ran into the appellant while running to the house of the
victim. He was only four to five arms-length away when he saw the
appellant, thus his positive identification of the appellant.
Another alleged discrepancy is between the version of Major
Impas that the appellant and his companion were running towards
the car and that of Gascon’s testimony that the appel-lant was back-
tracking towards the car. The record discloses that what Major
Impas meant to convey was that he saw the appellant and his
companion fleeing from the scene of the crime to their get-away car
while the description of Gascon that the appellant was “back-
tracking” towards the car was a description of how the appellant fled
from the victim’s house to the car, to make sure that they were not
being followed.
4
The alleged contradiction between Gascon’s affidavit, wherein
he mentioned that he saw the appellant and another person running
towards the car, and his testimony on cross-examina-tion that he
only saw the appellant, is of no material conse-

________________

4 Exhibit F.

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People vs. Gamboa

quence considering that the appellant has been positively identified

as the assailant. Moreover, as it is generally pointed out, an affidavit
taken ex-parte almost always cannot be relied upon as oftentimes it
5
is inaccurate.
By and large, the Court is not persuaded that the appellant’s
claim of contradictions and inconsistencies on the part of the
prosecution witnesses puts into serious doubt their credibility.
Different persons who witnessed an incident from different angles
and situations could not be expected to give uniform details of what
they saw and heard. Such minor discrepancies and inconsistencies
are to be expected because of the human differences in perception.
Such contradicting statements are on minor details, as hereinabove
discussed, and rather than affect the credibility of the witnesses, the
same are badges of candor.
Nevertheless, under the second assigned error, the appellant
alleges that his identification by the prosecution witnesses cannot be
relied upon considering that they did not immediately inform the
police investigators of the identity of the assailant upon their arrival.
Although it may be true that the eyewitnesses did not immediately
identify the appellant as the assailant to the responding policemen, it
is also a matter of fact that Major Impas informed Cpl. Petallar
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while they were on the way to the Southern Islands Hospital, where
6
the victim was brought, that the assailant is the appellant. The
second instance was when Soledad went to the mobile patrol
division and revealed to Cpl. Petallar that the appellant was the one
7
who shot her common-law husband.
It is quite understandable when the witnesses do not immediately
report the identity of the offender after a startling occurrence more
especially when they are related to the victim as they just had a
traumatic experience. More so as in the case of Major Impas who is
the victim’s father and Soledad, his com-mon-law wife.
Nevertheless, a delay of about a few hours before the identification
of the offender by the prosecution witnesses does not thereby affect
their credibility.

_______________

5 People vs. Avanzado, Sr., 158 SCRA 427 (1988).

6 Page 10, TSN, February 21, 1989.
7 Exhibits C, D, and F.

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People vs. Gamboa

The inadmissibility of the alleged verbal confession of the ap-pellant

is raised on the ground that he was maltreated as a result of which he
suffered twenty-seven injuries in the form of contusions, lacerations
and abrasions. It does not appear, however, that the prosecution
proposed to rely on this alleged confession of the appellant, or that
the trial court considered the same at all in the resolution of the case.
If it were to be considered at all, it would be worthless because of
the undeniable fact that the appellant was not only arrested without a
warrant and entry into his house was effected without a search
warrant, but worse, he was maltreated since his arrest so much so
that he suffered multiple injuries. The police investigators
responsible for this manhandling should be investigated and held to
account. Such involuntary confession cannot help the case of the
prosecution. It is a stain in the record of the law enforcement agents
who handled the case.
Under the fifth assigned error, the appellant questions the
admissibility of the shotgun as the alleged murder weapon. He says
it was not found in his possession but his house was searched and
the shotgun was confiscated without a search warrant.
He also alleges that the three (3) empty shells that were
submitted for the ballistics examination were not recovered from the
scene of the crime and their production is a frameup by the police.
Again, the Court observes that the police investigators confiscated
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the shotgun from the premises of the residence of the appellant

without a search warrant. Such violation of the constitutional rights
of a person should be investigated and inquired into.
Nevertheless, the Court is not persuaded that the police
investigators in this case would willingly allow themselves to be
instruments to frame the appellant for so serious a crime as murder.
It appears that the three empty shells were actually recovered from
the vicinity of the scene of the crime. The ballistics examination
shows that it was fired from the very shotgun of the appellant. This
evidence corroborates the theory of the prosecution, very strongly,
that the appellant was the assailant of the victim.
Even if the Court disregards the shotgun as having been illegally
secured as well as the results of its ballistic examination

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in relation to the empty shells, still there is adequate evidence in the

record to justify a verdict of conviction. Indeed, the Court did not
even consider it necessary to inquire into the motive of the appellant
in the light of his positive identification by the prosecution
witnesses.
As to the paraffin test to which the appellant was subjected to he
raises the question, under the sixth assigned error, that it was not
conducted in the presence of his lawyer. This right is afforded to any
person under investigation for the commission of an offense whose
confession or admission may not be taken unless he is informed of
his right to remain silent and to have competent and independent
8
counsel of his own choice. His right against self-incrimination is
not violated by the taking of the paraffin test of his hands. This
constitutional right extends only to testimonial compulsion and not
when the body of the accused is proposed to be examined as in this
9
case. Indeed, the paraffin test proved positively that he just recently
fired a gun. Again, this kind of evidence buttresses the case of the
prosecution.
WHEREFORE, the decision appealed from is AFFIRMED with
the sole modification that the indemnity to the heirs of the offended
party is increased to P50,000.00, with costs against the appellant.
Let a copy of this decision be furnished the Chairman of the
Philippine National Police for his information and appropriate action
on the actuations of the law enforcement agents hereinabove
discussed.
SO ORDERED.

     Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea,

JJ., concur.
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Decision affirmed with sole modification.

Notes.—An extrajudicial confession taken without the assistance

of counsel, violated the rights of accused to remain silent, and to
counsel, and to be informed of such right and his right to

_______________

8 Section 12(1) and (3), Article III, Constitution.

9 Stonehill vs. Diokno, 20 SCRA 383 (1967).

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Normal Holdings and Dev’t. Corp. vs. Court of Appeals

have no force, violence, threat, intimidation, or any other means

employed upon him which vitiates his free will. (People vs. Elegino,
164 SCRA 260.)
Positive idenfication of the appellant as the perpetrator of the
crime by the prosecution witnesses is given great weight. (People vs.
Santillan, 157 SCRA 534.)

——o0o——

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