For killing of student at restobar in 2003: 40 years in jail for Akrho man
The family of the victim of a fraternity-related killing four years ago finally found justice yesterday when the court sentenced the killer to 40 years in prison.
Convicted was Alpha Kappa Rho (Akrho) member Sherwin Que, who shot dead university student Mark James Enriquez in 2003.
Regional Trial Court Judge Bienvenido Saniel Jr. sentenced Que to 40 years imprisonment as principal in the crime of murder.
Saniel also sentenced Que's co-accused, Anthony John Apura, to 14 years imprisonment as accomplice to the crime.
Both Que and Apura were also ordered to jointly pay Enriquez' heirs P50,000 as indemnity and another P50,000 as moral damages and for other costs.
The assailants reportedly mistook Enriquez to be a member of rival fraternity Tau Gamma when Que shot him on
Que, an Akhro member for 14 years, admitted to the shooting last year when he took the witness stand, but claimed it was purely an accident and that he was just defending himself when a rumble ensued.
He apologized in open court for what he did.
But in his 20-page decision, Saniel said, the testimonies of the prosecution's witness were "clear and definite" to hold Que liable as principal in the crime of murder.
"The court finds it difficult to give credence to Que's version of the incident. First of all, his claim of self-defense was not corroborated by anyone, not even by his lone witness Hanzel Lauron.
"Second, the testimonies of the prosecution witnesses were clear and definite. They positively identified him and clearly described the manner and circumstances in which he shot Enriquez," Saniel said.
The court gave weight to testimonies of witnesses that Que did not shoot in self-defense or hit Enriquez by mistake.
"According to witnesses, he aimed and deliberately fired at him. It is hornbook doctrine that positive testimony prevails over negative testimony. As between a positive and categorical testimony which has the ring of truth on one hand and a bare denial on the other, the former is generally held to prevail," Saniel said.
While Que had claimed that he aimed at the chest of his attackers who were reportedly taller than him, Saniel said this statement was belied by the statement of National Bureau of Investigation medico-legal officer Wyben Briones, who said that Enriquez must have been at a "lower level" probably "sitting or kneeling down" when he was shot.
Saniel said the prosecution evidence showed that Apura first struck Enriquez with a beer bottle on the head, after which three persons struck him with beer bottles and, afterwards, others in the bar followed suit.
Later, Que came and shot Enriquez.
Based on the trajectory of the bullet, NBI experts say he was probably "sitting or kneeling" and covering his head with his hands when he was shot. It was also proven that Enriquez was unarmed.
The court also took into consideration that the attack was sudden and unexpected that Enriquez might not even have noticed Que's arrival and his act of shooting.
"Clearly, when Que shot Enriquez there was no risk to the former arising from whatever defense the latter might make. There was no way Enriquez could have defended himself. There was treachery," the court said.
While the court believed that Que is liable as a principal in the crime of murder, the prosecution reportedly was not able to prove evident premeditation in the case.
Elements of evident premeditation include the time when the offender determined to commit the crime, an act indicating that he clung to his determination, and the sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act.
The court also maintained that there was no conspiracy between Apura and the other accused, particularly Sherwin Que, in the commission of the offense.
"The record is totally wanting of proof to show that the accused came to an agreement or planned to kill Enriquez."
The court said that while the respondents were seen talking to each other shortly before they assaulted Enriquez, is not clear and conclusive proof that they previously agreed or plotted to kill the victim.
When he took the witness stand last year, Que also apologized to Enriquez' mother for what he did.
"Ako lang masulti, mangayo ko'g pasaylo... Rumble man gud to, nagdepensa ra ko sa akong kaugalingon. Wala gyud to nako tuyua, wala pud ko kahibalo nga siya diay ang na-igo...maski unsa nga silot akong dawaton, peron hangyo lang nako nga tagaan ko'g higayon nga mag-usab sa akong kinabuhi og magtukod og pamilya" Que had said.
When asked why he pleaded not guilty to the original charge of murder, Que had said he did no know the difference between homicide and murder.
Que narrated that he arrived at the restobar a little past
At least 80 members were reportedly present that night.
He said that left to buy cigarettes, but learned upon his return that members of rival fraternity Tau Gamma were already in the restobar.
Two persons allegedly threatened to hurt him with broken bottles of beer when he made his way inside.
The two allegedly continued to make their way towards him, which forced him to take out his firearm, fire twice, and then realized that somebody was hit by the second shot.
Other Akrho members impleaded in the case are Jun-jun Rivera, Alvin Taggart Alviz and an unidentified companion.
Only Que and Apura were arrested.
In the same 20-page decision, Saniel has ordered for warrants of arrest to be issued against those at large and for a separate trial against them once they are arrested.
Que maintained that he only met Apura when they were both jailed for the same murder case. Apura is currently out on bail. - (/NLQ)
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