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G.R. Nos.

132325-26

July 26, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ROMEO ESPINA, accused-appellant.
Criminal Procedure; Witnesses; It is the prosecutions prerogative to determine who
should be presented as witnesses on the basis of its own assessment of their necessity.
Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not
damaging to the case of the prosecution. In Eufronias affidavit, she declared that after
Rogelio Espina, Samson Abuloc and the deceased went out of her house, she heard
three gunshots but bothered not to go outside because of fear. Evidently, Eufronia Pagas
is not an eyewitness and her testimony would not do much for the prosecution. At any
rate, it is the prosecutions prerogative to determine who should be presented as
witnesses on the basis of its own assessment of their necessity. Hence, its choice of
witnesses cannot be successfully challenged by accused-appellant.
Witnesses; A witness who is a friend and a second cousin of the accused, he is expected
to be familiar with his voice; Light from the stars or the moon, an oven, or a wick lamp
or gasera can give ample illumination to enable a person to identify or recognize
another.Neither do we find improbable the testimony of Samson Abuloc that he
recognized the voice of accused-appellant. Being a friend and a second cousin of
accused-appellant, he is expected to be familiar with his voice. So also, we find no
reason to doubt the testimony of Abuloc that he was able to identify the pistol used by
accused-appellant as well as witnessed the stabbing of the victim at the back. Not only
was Abuloc only three to four meters away from accused-appellant, the prosecution was
likewise able to establish that the moonlight illuminating the locus criminis afforded the
witness a clear view of the shooting incident. The Court has previously held that the
light from the stars or the moon, an oven, or a wick lamp or gasera can give ample
illumination to enable a person to identify or recognize another. Under the
circumstances, therefore, Abuloc could not have failed to recognize accused-appellant
who is not only his barkada but a second cousin as well.
Same; It is doctrinally settled that the assessment of the credibility of witnesses and
their testimonies is a matter best undertaken by the trial court because of its unique
opportunity to observe the witnesses first hand and to note their demeanor, conduct
and attitude under grilling examination.It is doctrinally settled that the assessment of
the credibility of witnesses and their testimonies is a matter best undertaken by the trial
court because of its unique opportunity to observe the witnesses first hand and to note
their demeanor, conduct and attitude under grilling examination. In the case at bar, the
trial court did not err in giving credence to the version of the prosecution. The facts and
circumstances alleged to have been overlooked by the trial court are not material to the
case and will not affect the disposition thereof.
Criminal Law; Murder; Hearsay Rule; Dying Declarations; Res Gestae; An alleged dying
declaration of the victim should not be admitted as an ante mortem statement where
the prosecution failed to show that the subject declaration was made under the
consciousness of an impending death; Where the declaration of the deceased pointing
to the accused as the culprit was made shortly after a startling occurrence and under

the influence thereof, the victim evidently without any opportunity to contrive, the same
may be admitted as part of the res gestae.The alleged dying declaration of the victim
should not have been admitted as an ante mortem statement, considering that the
prosecution failed to show that the subject declaration was made under the
consciousness of an impending death. Prosecution witness Celmar testified that on the
way to the hospital, the victim told him that it was accused-appellant who shot him.
Though the victim eventually died two days after he was shot, there is nothing in the
records that would show that the victim was under the impression that he was going to
die. However, the declaration of the deceased pointing to accused-appellant as the
culprit is admissible as part of res gestae. Having been made shortly after a startling
occurrence and under the influence thereof, the victim evidently had no opportunity to
contrive.
Same; Same; Witnesses; Delay in revealing the identity of the perpetrator of a crime
does not necessarily impair the credibility of a witness, especially where such witness
gives a sufficient explanation.The delay of Felix Celmar in revealing the declaration of
accused-appellant does not make Celmars testimony unworthy of belief. Delay in
revealing the identity of the perpetrator of a crime does not necessarily impair the
credibility of a witness, especially where such witness gives a sufficient explanation. In
the case at bar, such delay was amply explained by the witness. Celmar testified that it
took him four months to reveal what he knew because he thought he would not be
utilized as witness for the prosecution. Moreover, after the incident, he had to leave for
his work in Albay.
Same; Same; Illegal Possession of Firearms; The amendatory provision of Republic Act
No. 8294, amending Presidential Decree No. 1866, not being favorable to the accused,
cannot be applied to the accused, lest it acquires the character of an ex post facto law.
The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997),
amending P.D. No. 1866, provides that If homicide or murder is committed with the use
of an unlicensed firearm, such use of an unlicensed firearm shall be used as an
aggravating circumstance. This amendment, however, cannot be applied in the present
case. It bears stressing that when the offenses at bar were perpetrated on September
30, 1992, the unlicensed firearm used in taking the life of another was not yet a special
aggravating circumstance in murder or homicide. Not being favorable to the accused,
the amendatory provision cannot be applied to accused-appellant, lest it acquires the
character of an ex post facto law.
Same; Same; Aggravating Circumstances; Treachery; As the treachery employed by the
accused in shooting the victim is actually a circumstance that qualified the killing to
murder, treachery cannot be offset by a mitigating circumstance.The trial court erred
in treating alevosia merely as a generic aggravating circumstance, more so in offsetting
the same by the generic mitigating circumstance of having committed the crime in
immediate vindication of a grave offense. The treachery employed by accused-appellant
in shooting the victim is actually a circumstance that qualified the killing to murder.
Such being the case, treachery cannot be offset by a mitigating circumstance.
Same; Same; Justifying Circumstances; Vindication of a Grave Offense; The act of the
victim of urinating on the accused in front of guests undoubtedly insulted and
humiliated the accused, a circumstance coming within the purview of a grave offense

under Article 13, paragraph 5, of the Revised Penal Code, and for which the mitigating
circumstance of acting in immediate vindication of a grave offense should be
appreciated in favor of the accused.The trial court correctly appreciated the mitigating
circumstance of having acted in immediate vindication of a grave offense. As the
evidence on record show, accused-appellant was urinated on by the victim in front of
the guests. The act of the victim, which undoubtedly insulted and humiliated accusedappellant, came within the purview of a grave offense under Article 13, paragraph 5,
of the Revised Penal Code. Thus, this mitigating circumstance should be appreciated in
favor of accused-appellant. [People vs. Espina, 361 SCRA 701(2001)]
YNARES-SANTIAGO, J.:
This is an appeal from the Decision1 of the Regional Trial Court of Tagbilaran, Branch 47,
in Criminal Case Nos. 8194 and 8155 convicting accused-appellant of the crime of
Murder qualified by Illegal Possession of Firearms under P.D. No. 1866, as amended by
R.A. No. 8294; and sentencing him to suffer the penalty of Reclusion Perpetua and to
pay the heirs of the deceased the sum of P50,000.00 and the costs.
The information for the crime of murder alleged:
That on or about the 30th day of September, 1992, in the municipality of
Tubigon, province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused without justifiable motive, with
treachery and abuse of superior strength, the accused being then armed with a
short firearm and without giving opportunity to the victim to defend himself, did
then and there willfully, unlawfully and feloniously attack, assault and shoot one
Romeo Bulicatin, with the use of said firearm, hitting the latter on the vital part of
his body resulting to his death; to the damage and prejudice of the heirs of the
deceased.
Acts committed contrary to the provisions of Article 248 of the Revised Penal
Code with the aggravating circumstance of nighttime being purposely sought for
or taken advantage of by the accused to facilitate the commission of the crime. 2
For Illegal Possession of Firearms, the information stated:
That on or about the 30th day of September, 1992, in the municipality of
Tubigon, province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, with intent to possess firearm and
ammunition did then and there willfully, unlawfully and criminally keep, carry and
have in his possession, custody and control a short firearm and ammunition
without first obtaining the necessary permit or license to possess the said firearm
and ammunition from competent authority, which firearm and ammunition were
carried by the accused outside of his residence and used by him in committing
the crime of Murder of which one Romeo Bulicatin was the victim; to the damage
and prejudice of the Republic of the Philippines. Acts committed contrary to the
provisions of Presidential Decree No. 1866.3

Upon arraignment on June 27, 1994, accused-appellant pleaded not guilty to both
charges;4 thereafter trial followed.
The facts as adduced by the prosecution are synthesized in the People's Brief, thus In the afternoon of September 30, 1992, the members of an association locally
known as the "ripa-ripa" went to the house of Eufronia Pagas located at sitio
Batic, Tan-awan, Tubigon, Bohol for their scheduled contribution to a fund
intended for a wedding celebration. (p. 3, August 23, 1996, TSN; p. 3, January 21,
1997, TSN) Among those present thereat were Romeo Bulicatin, Rogelio Espina,
Samson Abuloc who were having a drinking spree and playing "chikika", a card
game. (p. 4, May 9, 1995, TSN).
When accused-appellant arrived, Romeo asked three (3) bottles of "kulafu" wine
from him and he acceded by buying three (3) bottles of "kulafu" wine from the
store of Eufronia Pagas. Later on, at around 4:00 of that afternoon, Romeo again
demanded another bottle of "kulafu" wine from accused-appellant but this time,
the latter refused to give in to the demand. (p. 4, January 21, 1997, TSN) Romeo
then proceeded to where accused-appellant was playing cards and without any
warning, urinated on the latter and clipped him under his (Romeo) arms. (p. 4,
August 23, 1996, TSN) Accused-appellant got angry. He however did not engage
Romeo in any altercation but instead turned away and went home. (p. 5, May 9,
1995, TSN)
Later on in the evening, at about 9:00 p.m., while Romeo, Rogelio and Samson
were still having a drinking spree at the store of Eufronia Pagas, they heard
accused-appellant calling Romeo from outside, saying, "Borgs, get out because I
have something to say." The trio came down from the house. Rogelio went down
first, followed by Samson and Romeo (pp. 5-6, ibid.) When Rogelio reached the
ground, accused-appellant told him to drop down while Samson also dropped
himself to the ground when he saw accused-appellant about to draw his firearm.
At that juncture, Romeo was still at the stairway and when he turned his back
towards accused-appellant, the latter shot him, hitting him at the back. Romeo
ran away but he was chased by accused-appellant who fired two (2) more shots
at him. (p. 5, March 19, 1996, TSN; p. 7, May 9, 1995)
Samson ran away from the scene of the incident and upon reaching the house of
Poloy Concha, he saw Romeo outside the house asking for help. Samson asked
some of residents to help him bring Romeo to barangay Cawayanan. (pp. 14-15,
March 19, 1996, TSN) They loaded Romeo in a rattan cradle and upon reaching
the said barangay at about 3:00 o'clock of the following morning, they
transferred him to the vehicle owned by a certain Emiliano Fucanan. From the
said barangay, Romeo was taken to the house of Mayor Placing Mascarinas in
Poblacion, Tubigon, Bohol where he was transferred to the ambulance which took
him to the Celestino Gallares Memorial Hospital in Tagbilaran City. On the way to
the hospital, Felix Celmar asked Romeo what happened to him and the latter
answered that he was shot by accused-appellant. (pp. 4-8, July 29, 1996, TSN)
Romeo was brought to the emergency room and underwent operation. He
however died at about 5:00 p.m. of October 2, 1992, due to septic shock

irreversible, generalized peritonitis, gunshot wound, perforating ileum. (pp. 7 &


11, June 18, 1996, TSN)5
The defense presented four witnesses, namely: Rogelio Espina, Dr. Harold B. Gallego,
Maximiano Dormal and accused-appellant himself.
The testimonies of accused-appellant and Maximiano Dormal may be summarized as
follows:
At around 1:00 o'clock in the afternoon of September 30, 1992, accused-appellant was
in the house of Eufronia Pagas to represent his father in a meeting to prepare for a
wedding celebration. Among those present in the said gathering were accusedappellant's brother, Rogelio Espina, and the deceased, Romeo Bulicatin who were
having a drinking spree. When accused-appellant arrived thereat, Bulicatin asked him to
buy 3 bottles of "kulafu" wine to which he acceded. At around 4:00 o'clock of the same
afternoon, Bulicatin again demanded another bottle of "kulafu" wine from accusedappellant. The latter, however, refused to obey, prompting Bulicatin to urinate on
accused-appellant. This infuriated accused-appellant, but instead of assaulting Bulicatin,
he turned his back and walked away because he knew that Bulicatin always carried a
knife. When accused-appellant was about 12 meters away from the house of Eufronia
Pagas, Bulicatin pursued him. Accused-appellant tried to evade Bulicatin but the latter
caught up with him and stabbed him on his side. Consequently, accused-appellant
sustained a deep punctured wound but was fortunately able to escape until he passed
out.6
At around 6:00 o'clock p.m. of the same day, Maximiano Dormal who was then on his
way home, saw accused-appellant wounded and lying on the ground. Recognizing the
latter, Dormal immediately informed and accompanied accused-appellant's parents who
lost no time in bringing him to the hospital.7
On the other hand, defense witness Rogelio Espina (Rogelio), declared that in the
afternoon of September 30, 1992, he was in the house of Eufronia Pagas, having a
drinking spree with Romeo Bulicatin and Samson Abuloc, while his brother, herein
accused-appellant, was playing cards. At around 3:00 o'clock p.m., he saw Bulicatin
approach accused-appellant and forthwith urinated on him. Thereafter, Bulicatin
grabbed accused-appellant under his arms but the latter was able to extricate himself
from the hold of Bulicatin and ran away. Rogelio wanted to follow accused-appellant but
was prevailed upon by Bulicatin to stay. They then continued their drinking spree until
9:00 o'clock p.m. When they were about to go home, Rogelio heard somebody calling
Bulicatin, saying - "Get out, Borgs, as I have something to tell you." According to
Rogelio, he is certain that the voice was not that of accused-appellant. When they
decided to go home, he was the first one to go downstairs, followed by Samson Abuloc,
and then by Bulicatin. Upon reaching the ground, Rogelio heard a gunshot and
immediately scampered away without looking back to see who was shot. He claimed
that it was only two days after the incident that he came to know who the victim of the
shooting incident was. He added that from the house of Eufronia Pagas, he directly went
home where he was told by his mother that accused-appellant was stabbed and was
brought to the hospital.

On August 25, 1997, the trial court rendered the assailed decision, holding as follows:
WHEREFORE, Premises Considered, the Court finds the accused, Romeo Espina,
guilty beyond reasonable doubt, for the crime of Murder defined and penalized
by Article 248 of the Revised Penal Code and Qualified Illegal Possession of
Firearms under Presidential Decree No. 1866, as amended by Republic Act No.
8294 and sentences him to suffer the straight penalty of imprisonment of
RECLUSION PERPETUA with the inherent accessory penalties provided by law,
there being a mitigating circumstance of vindication for a grave offense
committed on the accused; to indemnify the heirs of the deceased, Romeo
Bulicatin, in the amount of Fifty Thousand (P50,000.00) Pesos; and to pay the
costs.
SO ORDERED.8
Hence, this appeal on the following grounds:
I
THAT THE LOWER COURT HAS OVERLOOKED OR MISINTERPRETED THE
SIGNIFICANCE OF SOME FACTS OR CIRCUMSTANCES OF WEIGHT AND INFLUENCE
APPEARING IN THE RECORD IN FINDING THE ACCUSED GUILTY OF THE OFFENSES
CHARGED.
II
THAT THE LOWER COURT HAS GRAVELY ABUSED ITS DISCRETION IN FINDING
ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSES CHARGED. 9
In particular, accused-appellant points to the following facts and circumstances that had
been allegedly overlooked by the trial court, to wit 1) The resolutions of the 2nd Municipal Circuit Trial Court of Tubigon, Bohol in
Criminal Case Nos. 1245 and 1246 to the effect that there was no sufficient
evidence that accused-appellant had committed the crimes charged;
2) The non-presentation of Eufronia Pagas (the owner of the house where the
victim and his companions had a drinking spree), despite being listed in the
information as one of the witnesses for the prosecution.
3) The testimony of prosecution eyewitness Samson Abuloc, that he does not
know Felix Celmar who claimed to be one of the persons asked by the former to
help him bring the victim to the hospital.
4) The incredibility of the testimony of Samson Abuloc as regards his having
identified accused-appellant through his voice and the type of firearm used by
the latter in shooting the victim as well as his having seen the victim being hit at
the back by the first gunshot fired at him by accused-appellant;

5) The fact that at about 6:00 o'clock in the evening of September 30, 1992,
accused-appellant was found by one Maximiano Dormal lying wounded and
groaning near a pathway leading to the latter's house; and
6) The length of time that elapsed before Felix Celmar revealed that the victim
told him that accused-appellant was the one who shot him. 10
Accused-appellant makes capital of the November 23, 1992 Resolutions 11 of the 2nd
Municipal Circuit Trial Court of Tagbuin-Clarin Bohol, which found the evidence against
accused-appellant to be insufficient after conducting the preliminary investigation. We
note, however, that said resolutions were reversed and superseded by the February 2,
1993 Omnibus Resolution12 of the Second Assistant Provincial Prosecutor, who, after
conducting a re-investigation of the instant case, found probable cause to hold accusedappellant for trial and accordingly filed the corresponding informations against accusedappellant.
Moreover, the basis of the investigating judge in declaring insufficiency of evidence
does not appear to be substantial. Pertinent portion of said resolution reads:
Upon the foregoing facts, the court finds and is satisfied that the offense
complained of has been committed, but there is insufficiency of evidence that the
herein accused Romeo Espina committed the crime for the simple reason that
according to the declaration of Eufronia Pagas who is an unbiased witness as
compared to the declaration of Samson Abuloc who was a close barcada of the
victim, the herein accused Romeo Espina was not in her house where the
drinking spree was held from 6:00 to 9:00 o'clock in the evening of September
30, 1992.13
Clearly, the fact that Eufronia did not see accused-appellant in her house between 6:00
9:00 o'clock in the evening of September 30, 1992, does not in any way contradict or
refute the claim of the prosecution that accused-appellant left the house of Eufronia at
around 4:00 in the afternoon after being urinated on by the victim and thereafter
returned at about 9:00 p.m. and shot the victim outside the house of Eufronia.
Then too, the non-presentation of Eufronia Pagas as a prosecution witness is not
damaging to the case of the prosecution. In Eufronia's affidavit, she declared that after
Rogelio Espina, Samson Abuloc and the deceased went out of her house, she heard
three gunshots but bothered not to go outside because of fear. 14 Evidently, Eufronia
Pagas is not an eyewitness and her testimony would not do much for the prosecution. At
any rate, it is the prosecution's prerogative to determine who should be presented as
witnesses on the basis of its own assessment of their necessity. 15 Hence, its choice of
witnesses can not be successfully challenged by accused-appellant.
Whether or not prosecution witness Samson Abuloc knew Felix Celmar who claimed to
be one of the persons asked by the former to help him bring the victim to the hospital,
is of no consequence. As correctly pointed out by the Solicitor General, it is possible that
Felix Celmar, a resident of another barangay, is not known by name to Abuloc,
especially so since their meeting on that fateful day was only casual.

Neither do we find improbable the testimony of Samson Abuloc that he recognized the
voice of accused-appellant. Being a friend and a second cousin of accused-appellant, he
is expected to be familiar with his voice. So also, we find no reason to doubt the
testimony of Abuloc that he was able to identify the pistol used by accused-appellant as
well as witnessed the stabbing of the victim at the back. Not only was Abuloc only three
to four meters away from accused-appellant,16 the prosecution was likewise able to
establish that the moonlight illuminating the locus criminis afforded the witness a clear
view of the shooting incident.17 The Court has previously held that the light from the
stars or the moon, an oven, or a wick lamp or gasera can give ample illumination to
enable a person to identify or recognize another. 18 Under the circumstances, therefore,
Abuloc could not have failed to recognize accused-appellant who is not only his
"barkada" but a second cousin as well.
Contrary to the claim of accused-appellant, the trial court did not overlook his
contention that he could not have committed the offenses charged because at around
4:00 o'clock p.m. of September 30, 1992, he was unconscious due to a stab wound. In
fact, the trial court treated the same as a defense of denial and alibi. Indeed, these
defenses cannot prevail over the categorical and positive identification of accusedappellant by prosecution witness Abuloc who was not shown to have any ill motive to
testify falsely against him.19
Moreover, it is doctrinally settled that the assessment of the credibility of witnesses and
their testimonies is a matter best undertaken by the trial court because of its unique
opportunity to observe the witnesses first hand and to note their demeanor, conduct
and attitude under grilling examination.20 In the case at bar, the trial court did not err in
giving credence to the version of the prosecution. The facts and circumstances alleged
to have been overlooked by the trial court are not material to the case and will not
affect the disposition thereof.
The alleged dying declaration of the victim should not have been admitted as an ante
mortem statement, considering that the prosecution failed to show that the subject
declaration was made under the consciousness of an impending death. Prosecution
witness Celmar testified that on the way to the hospital, the victim told him that it was
accused-appellant who shot him. Though the victim eventually died two days after he
was shot, there is nothing in the records that would show that the victim was under the
impression that he was going to die. However, the declaration of the deceased pointing
to accused-appellant as the culprit is admissible as part of res gestae. Having been
made shortly after a startling occurrence and under the influence thereof, the victim
evidently had no opportunity to contrive.21 Furthermore, the delay of Felix Celmar in
revealing the declaration of accused-appellant does not make Celmar's testimony
unworthy of belief. Delay in revealing the identity of the perpetrator of a crime does not
necessarily impair the credibility of a witness, especially where such witness gives a
sufficient explanation. In the case at bar, such delay was amply explained by the
witness. Celmar testified that it took him four months to reveal what he knew because
he thought he would not be utilized as witness for the prosecution. Moreover, after the
incident, he had to leave for his work in Albay.
In convicting accused-appellant, the trial court appreciated the special aggravating
circumstance of use of unlicensed firearm, pursuant to P.D. No. 1866, as amended by

R.A. No. 8294. Considering the penalty provided for in Article 248 of the Revised Penal
Code, as amended by R.A. No. 7659, the trial court imposed the penalty of death on
accused-appellant. However, in view of the suspension of the imposition of the death
penalty then, accused-appellant was sentenced to suffer the penalty of reclusion
perpetua.
The third paragraph, Section 1, of R.A. No. 8294 (which took effect on July 6, 1997),
amending P.D. No. 1866, provides that "If homicide or murder is committed with the use
of an unlicensed firearm, such use of an unlicensed firearm shall be used as an
aggravating circumstance." This amendment, however, cannot be applied in the present
case. It bears stressing that when the offenses at bar were perpetrated on September
30, 1992, the unlicensed firearm used in taking the life of another was not yet a special
aggravating circumstance in murder or homicide. Not being favorable to the accused,
the amendatory provision cannot be applied to accused-appellant, lest it acquires the
character of an ex post facto law.22
Likewise, the trial court erred in treating alevosia merely as a generic aggravating
circumstance, moreso in offsetting the same by the generic mitigating circumstance of
having committed the crime in immediate vindication of a grave offense. The treachery
employed by accused-appellant in shooting the victim is actually a circumstance that
qualified the killing to murder. Such being the case, treachery cannot be offset by a
mitigating circumstance.
The trial court correctly appreciated the mitigating circumstance of having acted in
immediate vindication of a grave offense. As the evidence on record show, accusedappellant was urinated on by the victim in front of the guests. The act of the victim,
which undoubtedly insulted and humiliated accused-appellant, came within the purview
of a "grave offense" under Article 13, paragraph 5, of the Revised Penal Code. Thus, this
mitigating circumstance should be appreciated in favor of accused-appellant.
As to the imposable penalty, the applicable provision is Article 248 of the Revised Penal
Code before its amendment by R.A. No. 7659 on December 31, 1993, the crime having
been committed on September 30, 1992. Thereunder, the penalty for murder
was reclusion temporal in its maximum period to death. With one generic mitigating
circumstance and no aggravating circumstance to offset it, the penalty should be
imposed in its minimum period, i.e., reclusion temporal maximum. Applying the
Indeterminate Sentence Law, accused-appellant should be sentenced to an
indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum,
to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as
maximum.
WHEREFORE, the Decision of the Regional Trial Court of Tagbilaran, Branch 47, in
Criminal Case Nos. 8194 and 8195 finding the accused-appellant Romeo Espina guilty
beyond reasonable doubt of the crime of murder,
isAFFIRMED with MODIFICATION that the accused-appellant is hereby sentenced to
suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum; and to pay the heirs of Romeo Bulicatin the sum of P50,000.00
as death indemnity and to pay the costs.
1wphi1.nt

SO ORDERED.

G.R. No. 122934. January 5, 2001.*


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL PRECIADOS (At
Large), ARTURO ENAD, EMIGDIO VILLAMOR, LEONCIO ALGABRE and
FLORIANO ALGABRE @ LOLOY, accused. ARTURO ENAD, accusedappellant.
Witnesses; Where the credibility of a witness is an issue, the established rule is that
great respect is accorded to the evaluation of the credibility of witnesses by the trial
court.Where the credibility of a witness is an issue, the established rule is that
great respect is accorded to the evaluation of the credibility of witnesses by the trial
court. It is in the best position to determine the issue of credibility of a witness,
having heard his testimony and observed his deportment and manner of testifying.
But, where there is a showing that the trial court overlooked material and relevant
facts, which could affect the outcome of a case, the Court will not hesitate to set
aside the lower courts findings and assessments regarding the credibility of
witnesses.
Same; The identification of an accused through his voice is acceptable, particularly
if the witness knows the accused personally; Where the witness fails to remain
consistent on important details, such as the identity of the person whose voice she
heard, a suspicion is created that material particulars in her testimony had indeed
been altered.We find Helens testimony riddled with inconsistencies and
improbabilities which could affect the outcome of this case. Helen testified that
upon hearing a different voice downstairs, she peeped through a two-inch hole in
the floor and saw, with the moonlight cascading through the windows of the old mill,
the accused forcibly make her husband, Primo, swallow poison. On direct
examination, she stated, she heard the words Dont move. Under
crossexamination, she said what she heard was Dont move so that the grenade
will not be exploded. As the cross-examination progressed, however, she declared
that what she actually heard was Dont move otherwise your family will be
included. She initially admitted that the first words were uttered by a voice
unknown to her. On further grilling by the defense, she claimed she recognized the
voice as appellants. Relentless crossexamination, however, yielded an admission
that it was the voice of accused Villamor she heard first. The identification of an
accused through his voice is acceptable, particularly if the witness knows the
accused personally. But the identification must be categorical and certain. We
observed that the witness changed her version a number of times. A startling or
frightful experience creates an indelible impression in the mind such that the
experience can be recalled vividly. Where the witness, however, fails to remain
consistent on important details, such as the identity of the person whose voice she
heard, a suspicion is created that material particulars in her testimony had indeed
been altered. If an eyewitness contradicts himself on a vital question, the element
of reasonable doubt is injected and cannot be lightly disregarded.
Same; Criminal Law; Murder; The wifes account that her husband violently
struggled against his murderers yet soundlessly gulped down the poison they made

him drink is unnatural.Her testimony regarding the murder of her husband, Primo,
is less than credible. She said that while Primo struggled not to imbibe the poison,
he did not utter a sound. According to her, Primo could not utter a sound as his neck
was clipped, or headlocked as the trial court puts it. There was no showing,
however, that the victims mouth was muffled to prevent him from shouting for
help. From her testimony, she could have easily asked for help. It will be recalled
that barangay captain and their neighbors quickly responded to her mother-in-laws
shout for help after seeing Primos corpse. Helens account, that her husband
violently struggled against his murderers yet soundlessly gulped down the poison
they made him drink, is unnatural. It evokes disbelief. Evidence to be believed must
not only proceed from the mouth of a credible witness but it must also be credible
by itself, and must conform to the common experience and observation of mankind.
Same; Same; Same; Hearsay Rule; Dying Declarations; Requisites; Words and
Phrases; A dying declaration is the statement which refers to the cause and
surrounding circumstances of the declarants death, made under the consciousness
of an impending death, and it is admissible in evidence as an exception to the
hearsay rule because of necessity and trustworthiness.A dying declaration is the
statement which refers to the cause and surrounding circumstances of the
declarants death, made under the consciousness of an impending death. It is
admissible in evidence as an exception to the hearsay rule because of necessity and
trustworthiness. Necessity, because the declarants death makes it impossible for
him to take the witness stand and trustworthiness, for when a person is at the point
of death, every motive for falsehood is silenced and the mind is induced by the
most powerful consideration to speak the truth. The requisites for the admissibility
of a dying declaration are: (1) the death is imminent and the declarant is conscious
of that fact; (2) the declaration refers to the cause and surrounding circumstances
of such death; (3) the declaration relates to facts which the victim is competent to
testify; (4) the declarant thereafter dies; and (5) the declaration is offered in a
criminal case wherein the declarants death is the subject of inquiry.
Same; Same; Same; Same; Same; A dying declaration is essentially hearsay,
because one person is testifying on what another person stated; It is patently
incorrect for a trial court to allow a prosecution witness to testify on a so-called
dying declaration where the declarant is alive.In the present case, the foregoing
requisites were not met. A dying declaration is essentially hearsay, because one
person is testifying on what another person stated. This is because the declarant
can no longer be presented in court to identify the document or confirm the
statement, but more important, to be confronted with said statement by the
accused and be crossexamined on its contents. It was patently incorrect for the trial
court to have allowed prosecution witness PO3 Leonardo Inoc to testify on Antonios
so-called dying declaration because Antonio was alive and later even testified in
court.
Same; Same; Same; Same; Res Gestae; Requisites; Where a victims statement may
not be admissible as an ante mortem declaration, it may nonetheless be considered
as part of the res gestae, if made immediately after a startling occurrence in
relation to the circumstances thereof and when the victim did not have time to

contrive a falsehood.But was the purported ante-mortem statement part of the


res gestae? Where a victims statement may not be admissible as an ante mortem
declaration, it may nonetheless be considered as part of the res gestae, if made
immediately after a startling occurrence in relation to the circumstances thereof and
when the victim did not have time to contrive a falsehood. For res gestae to be
allowed as an exception to the hearsay rule, the following requisites must be
satisfied: (1) that the principal act or res gestae be a starting occurrence; (2) the
statement is spontaneous or was made before the declarant had time to contrive or
devise, and the statement is made during the occurrence or immediately prior or
subsequent thereto; and (3) the statement made must concern the occurrence in
question and its immediately attending circumstances.
Same; Same; Same; Same; Same; Thirty-nine hours is too long a time to be
considered immediately subsequent to the startling event occurrenceeven as
contemplated by the rules, statements given a day after the incident in answer to
questions propounded by an investigator cannot be considered part of the res
gestae.The element of spontaneity is lacking in the alleged ante-mortem
statement. Antonios statement was taken by PO3 Inoc at around 3:00 oclock P.M.,
May 14, 1992 or some thirty-nine (39) hours after the incident. Thirty-nine hours is
too long a time to be considered subsequent immediately (stress supplied) to the
startling occurrence. Even as contemplated by the rules, statements given a day
after the incident in answer to questions propounded by an investigator cannot be
considered part of the res gestae. Furthermore, the testimony of the declarant, that
the statement was made under threats and with coaching from losing candidates
Ermac and Viva in order to get even with the winning candidate, Mayor Aana, is
uncontroverted.
Same; Same; Same; Same; Same; Dying declarations and statements which form
part of the res gestae are exceptions to the hearsay rule, thus they must be strictly
but reasonably construed and must extend only insofar as their language fairly
warrants.Dying declarations and statements which form part of the res gestae are
exceptions to the hearsay rule, thus they must be strictly but reasonably construed
and must extend only insofar as their language fairly warrants. Thus, doubts should
be resolved in favor of applying the hearsay rule, rather than the exceptions. Under
said rule, Antonios so-called ante-mortem statement should not have been
admitted in evidence, for it is neither a dying declaration nor a part of res gestae.
Same; Retractions and Recantations; As a rule, retractions are generally unreliable
and are looked upon with considerable disfavor by the courts because of the
probability that recantation may later on be itself repudiated.Next we consider
whether the trial court could properly rely on Antonios affidavit dated May 22, 1994
naming the persons responsible for the poisoning incident, notwithstanding his
subsequent repudiation of said affidavit. As a rule, retractions are generally
unreliable and are looked upon with considerable disfavor by the courts because of
the probability that recantation may later on be itself repudiated. Furthermore,
retractions can easily be obtained from witnesses through intimidation or for
monetary consideration, and a mere retraction does not necessarily negate an
earlier declaration. When faced with a situation where a witness recants an earlier

statement, courts do not automatically exclude the original testimony. The original
declaration is compared with the new statement, to determine which should be
believed.
Same; Affidavits; Hearsay Rule; Unless an affiant himself takes the witness stand to
affirm the averments in his affidavit, the affidavit must be excluded from the judicial
proceeding for being inadmissible as hearsay. The trial court rejected Antonios
retraction of his affidavit dated May 22, 1992, for being contrary to human
experience and inherently unworthy of belief. The trial court cited, by way of
illustration, the portion of the affidavit where Antonio claimed that after he and
Primo agreed to commit suicide and drinking a bottle of insecticide, Antonio wrote a
farewell letter to his barangay-mates. We note, however, that Antonios second
affidavit should have been rejected together with the first affidavit. Unless an affiant
himself takes the witness stand to affirm the averments in his affidavit, the affidavit
must be excluded from the judicial proceeding for being inadmissible as hearsay. In
this case the affiant expressly refused to confirm the contents of his first affidavit.
Instead, he testified that said affidavit, Exhibit E was prepared under grave
threats and severe pressure from Ermac and Viva. His earlier affidavits contents
were hearsay, hence inadmissible in evidence.
Same; Denials; Denial, if unsubstantiated by clear and convincing evidence, is a
negative and self-serving evidence undeserving of any weight in law.Appellants
defense of denial in the present case is inherently weak. Denial, if unsubstantiated
by clear and convincing evidence, is a negative and self-serving evidence
undeserving of any weight in law. But such weakness does not excuse the
prosecution from presenting the adequate quantum of proof of the crime charged.
The guilt of the accused must be proved beyond reasonable doubt. And the
prosecutions evidence must stand or fall on its own weight. It cannot rely on the
weakness of the defense. In the instant case, the prosecution failed to prove the
guilt of appellant with moral certainty. The testimony of its single purported
eyewitness, while positive, was less than credible. It did not meet the test such
testimony of a lone witness to sustain a judgment of conviction, must be both
positive and credible. In our view, the burden of proof required for conviction of
appellant has not been adequately discharged by the prosecution.
[People vs. Preciados, 349 SCRA 1(2001)]
QUISUMBING, J.:
Accused-appellant Arturo Enad1 assails the decision rendered by the Regional Trial Court
of Tagbilaran City, Branch 1, in two consolidated cases, Criminal Case No. 7887 for
murder and Criminal Case No. 7888 for frustrated murder. It convicted and sentenced
him to reclusion perpetua in the first case and to a prison terms of six (6) years and one
(1) day of prision mayor, as minimum to twelve (12) years and one (1) day of reclusion
temporal, as maximum, in the second case.
1wphi1.nt

In Criminal Case No. 7887, the Office of the Provincial Prosecutor of Bohol charged Angel
Preciados, Arturo Enad, Emigdio Villamor, Leoncio Algabre, and Floriano Algabre alias
"Loloy" with murder allegedly committed as follows:

The on or about the 12th to the 13th day of May 1992, in the municipality of
Sagbayan, province of Bohol, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping with (sic) one another, with intent to kill and without justifiable
cause, did then and there, willfully, unlawfully, and feloniously pour poison into
the mouth of one Primo Hilbero whereby causing the victim's untimely death; to
the damage and prejudice of the heirs of the deceased in the amount to be
proved during the trial.
Acts committed contrary to the provisions of Article 248 of the Revised Penal
Code, as amended, with the aggravating circumstances of (1) treachery, the
victim being unaware and unsuspecting and (2) abuse of superior strength, two
of the accused being armed with deadly weapons which they used in
intimidating, threatening and forcing the victim to drink the poison. 2
In Criminal Case No. 7888, the same persons were charged with frustrated murder. The
charge sheet reads:
That on or about the 12th to the 13th day of May, 1992, in the municipality of
Sagbayan, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping with (sic) one another, with intent to kill and without justifiable
cause, did then and there willfully, unlawfully and feloniously pour poison into the
mouth of one Antonio Hilbero thereby inflicting serious injuries on the victim's
body; thus, the accused having performed in said manner all the acts of
execution which would have produced the crime of Murder as a consequence, but
which nevertheless did not produce it by reason of a cause independent of their
will, that is, by the timely medical attendance and treatment rendered the
damage and prejudice of the said offended party in the amount to be proved
during the trial (sic).
Acts committed contrary to the provisions of Article 248 in relation to Articles 6
and 50 of the Revised Penal Code, as amended, with the aggravating
circumstances of (1) treachery, the victim being unaware and unsuspecting and
(2) abuse of superior of strength two of the accused being armed with deadly
weapon which they to used in intimidating, threatening and forcing the victim to
drink the poison.3
The informations were both dated July 20, 1992 but the cases were tried before
different salas. Branch 4 of the Regional Trial Court of Tagbilaran City, tried Criminal
Case No. 7887, while Branch 3 tried Criminal Case No. 7888.
On August 26, 1992, the accused in Criminal Case No. 7888 were ordered arrested. But
the police failed to apprehend any of the accused. Preciados and the Algebres were
reported to have gone into hiding in Mindanao, while Enad and Villamor went to Cebu
City. It was only on July 20, 1993, when appellant Arturo Enad was arrested. Arraigned in
Criminal Case No. 7887, he pleaded not guilty. He waived pre-trial and the case was set
for trial.

On September 13, 1993, Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City,
inhibited himself from Criminal Case No. 7887, since the accused were the political
leaders of Mayor Arthur Melicor-Aana, his cousin, while the victims were supporters of
the mayor's political rival, Narzal B. Ermac.
On February 14, 1994, Criminal Case No. 7888 was revived and jointly tried with
Criminal Case No. 7887 in Branch 1, RTC of Tagbilaran City. Arraigned in Criminal Case
No. 7888 on February 15, 1994, appellant entered a plea of not guilty. Thereafter,
Criminal Cases Nos. 7887 and 7888 were jointly tried, without prejudice to the separate
arraignment and trial of the other accused who continued to evade arrest.
The facts of the case, culled from the prosecution's presentation, are as follows:
Appellant and Antonio Hilbero,4 the victim in Criminal Case No. 7888, are second
cousins. Both are residents of Ubujan, Sagbayan, Bohol. Appellant is also a cousin of
Primo Hilbero's mother-in-law. Primo Hilbero is the victim in Criminal Case No. 7887.
During the May 11, 1992 elections, appellant and Antonio supported rival mayoralty
candidates of Sagbayan. Appellant was a supporter and poll watcher of Arthur Aana,
while Antonio, a barangay councilman of Ubujan, was a partisan of Narzal Ermac.
Appellant's co-accused were also identified with Aana who won.
At around 11:00 p.m. of May 12, 1992, Antonio with his common law wife and their two
children, his brother, Primo and his wife, Helen with their three children, Antonio's
mother, Dominga, and another brother, Severino were at the second floor of the old rice
mill at Ubujan. Except for Helen, the clan had retired for the night. She was about to go
to sleep when she noticed Antonio go downstairs. Minutes later, her husband Primo,
followed him. Then she heard someone utter, "Don't move." Alarmed, she rose from her
mat and peeped through a two-inch hole in the floor. 5 The ground floor was illuminated
by moonlight. She saw appellant holding a hand grenade while his other arm was locked
in a stranglehold around the neck of Antonio who knelt on the floor. 6 Nearby stood Angel
Preciados with a gun pointed at Antonio.7 She then heard Emigdio Villamor say "Don't
move so that your family will not die." She saw the latter forcing Primo to shallow an
object.8 The other accused held her husband to prevent him from struggling. Shocked,
Helen then soundlessly cried and embraced her children. Shortly afterwards, Helen's
mother-in-law, Dominga, was awakened by the barking of the family dog. Dominga went
downstairs where she saw Primo lifeless on the floor, reeking of poison. 9 Antonio was
nowhere to be found. Dominga rushed upstairs and woke up Severino, all the while
shouting for help. Minutes later, the barangay captain and some neighbors responded to
her shouts for assistance. They found Primo dead on the floor. Informed that Antonio
was missing, they searched the immediate surroundings for him but to no avail. 10
Early in the morning of May 13, 1992, the search for Antonio was resumed. He was
finally found by his uncle, Simeon Degamo, holding on to rock in a natural well, some
300 meters away from the rice mill. A rope was thrown to him and he was pulled out
from the well. Noticing that he smelled of some poisonous chemical, his rescuers made
him drink coconut milk.11 He was weak and appeared on the verge of death and brought
to the hospital at Clarin, Bohol for emergency treatment.

The next day, prosecution witness Zosimo Viva,12 a defeated municipal councilor
candidate in the same slate of Ermac, Antonio's common law wife, and two police
investigators transferred Antonio to the Gov. Celestino Gallares Memorial Hospital in
Tagbilaran City.13 According to prosecution witness Dr. Mayda14 Reyes who admitted
Antonio to the hospital, Antonio told her that the latter was forced to drink a certain
liquid, which smelled like insecticide.15 Another physician, Dr. Maria Luisa Tage, who
attended to Antonio diagnosed, "Poisoning, Etiology not determined, Brief reactive
psychosis."16
Since Antonio appeared to be dying, prosecution witness PO3 Leonardo Inoc, a police
investigator, took his "ante-mortem" statement17 in which he named the aforementioned
accused as the persons responsible for poisoning him and dropping him in the well. 18
Meanwhile, Ermac asked the National Bureau of Investigation (NBI) to conduct an
investigation.19 The toxicological examination of Primo's body revealed the presence
of methamidophos, the active ingredient of the insecticide "Tamaron" in Primo's
organs.20 The NBI also recovered two empty bottles, at the scene of the incident.
Chemistry tests on them revealed that the "Hoechst" bottle was positive
for deltamethrine, an insecticide, while the other bottle revealed traces
of methamidophos.21
Appellant denied any involvement in the poisoning incident. He claimed an alibi. He said
he spent the whole night of May 11, 1992, in the municipal hall of Sagbayan, as a
watcher for the party of Mayor Aana. He went home early morning of May 12, 1992
and spent the whole day repairing his pigpens even if he had not slept the previous
night. At around seven o'clock P.M. his wife and he went to the house of his co-accused
Angel Preciados to attend the birthday party of the latter's son.22 Afterwards, they
returned home and went to sleep.23 He woke up at around 9:00 A.M. and learned about
the incident. He went to the old rice mill to find out more about the poisoning incident
and saw the Hilberos. When he asked Helen what happened, she said she knew nothing
about the death of her husband.24 Later that day, he returned to Cebu City where he
worked as a crane operator. He could not think of any reason why he would be
suspected for committing a crime, as he was on good terms with the victims. 25
The defense offered a different version of the poisoning incident. According to the
defense, Antonio and Primo agreed to commit suicide by taking poison.26 It presented
Antonio's affidavit dated February 28, 1994, 27 where he recanted his story in his affidavit
of May 22, 1992.28 Antonio testified that he and Primo decided to commit suicide by
drinking poison to prevent defeated candidates Ermac and Viva from harming their
families. Antonio refused to follow the orders of Viva to kill the political leaders of Mayor
Aana, including the appellant. Thus, Antonio said, he and Primo feared for the lives of
their relatives. After Primo and he drank poison, Primo immediately died. When he did
not succumb right away, Antonio wrote a suicide note and tried to drown himself in the
well.29 After his rescue, Ermac and Viva took him into custody and bought him to
Mindanao, allegedly for his safety.30 The two, however, threatened to kill him and made
him falsely charge the appellant with murder and frustrated murder. 31 Antonio totally
repudiated his "ante-mortem" statement and his earlier affidavit charging the accused
with murder and frustrated murder.

Testifying for the defense, P/Col. Benjamin Absalon, of the Bohol Provincial Command of
the Philippine National Police, testified that the police investigation revealed that
Primo's death by poison was not due to foul play. He declared that they did not finish
their investigation because Antonio disappeared from the hospital before they could
interview him.32
To rebut Antonio's testimony, Dr. Mayda Reyes was called anew to confirm what Antonio
had told her, that he was forced to drink poison by several men.33 SPO1 Leonardo Inoc
testified again that he took Antonio's "ante-mortem" statement.34 Apolinario Libranza,
barangay captain of Ubujan, Sagbayan was presented to refute Antonio's claims
regarding Zosimo Viva.35 Antonio's mother, Dominga, testified that her son was not
afraid of either Viva or Ermac36 and affirmed the truthfulness of Helen's testimony.37
In sur-rebuttal, Antonio maintained the veracity of his suicide account.
Finding the prosecution's version more credible, the trial court on January 2, 1995,
convicted appellant of the crimes charged in Criminal Cases Nos. 7887 and 7888. It
concluded:
PREMISES CONSIDERED, in Criminal Case No. 7887 the Court finds the accused
Arturo Enad GUILTY of the crime of Murder punished under Article 248 of the
Revised Penal Code and hereby sentences him to suffer an imprisonment
of RECLUSION PERPETUA with the accessories of the law and to pay the costs.
The accused Arturo Enad is further ordered to indemnify the surviving spouse of
the deceased Primo Hilbiro (sic) in the amount of P50,000.00 representing
indemnity and P50,000.00 representing moral and exemplary damages. In both
instances without subsidiary imprisonment in case of insolvency.
In Criminal Case No. 7888, the Court finds the accused Arturo Enad GUILTY of the
crime of Frustrated Murder under Article 248 in relation with (sic) Articles 6 and
50 of the Revised Penal Code, as amended and hereby sentences him to suffer
an Indeterminate Sentence from SIX (6) YEARS and ONE (1) DAY, the Minimum of
the Minimum Period of Prision Mayor, as Minimum, to TWELVE (12) YEARS and
ONE (1) DAY, the Minimum of the Minimum Period of Reclusion Temporal, as
Maximum, with the accessories of the law and to pay the cost.
The Court makes no pronouncement as to indemnity and damages for the Court
viewed the retraction of the complainant Antonio Hilbiro (sic) of his previous
testimony, as a waiver of indemnity.
It appearing that the accused Arturo Enad has undergone preventive
imprisonment in Criminal Cases Nos. 7887 and 7888 he is entitled to the full time
of his preventive imprisonment to be deducted from his term of sentences (sic) if
he has executed a waiver.
SO ORDERED.38

On July 25, 1995, appellant filed his notice of appeal to this Court. On November 20,
1996, the Office of Legal Aid of the U.P. College of Law entered its appearance as
counsel.
Before us, appellant poses the following questions for resolution:
1. WHETHER OR NOT THE TRIAL COURT ERRED IN GIVING WEIGHT AND
CREDENCE TO THE CONTRADICTORY AND IMPROBABLE TESTIMONIES OF THE
WITNESSES OF THE PROSECUTION.
2. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING AND GIVING
WEIGHT TO THE DOCUMENTARY EVIDENCE PRESENTED BY THE PROSECUTION.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT HOLDING THAT THE
PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT AND IN DISMISSING THE DEFNESE OF HE ACCUSED.
In sum, appellant raises the following issues: First, Did the trial court err in giving
credence to the testimony of alleged eyewitness Helen Hilbero? Second, Did the lower
court err in relying on "dying statement" of Antonio Hilbero? Third, Did the prosecution
evidence successfully overcome the presumption of innocence in favor of the accused?
The first issue deals with the credibility of prosecution witness Helen Hilbero. Appellant
argues that the testimony of the sole prosecution eyewitness, Helen Hilbero, is doubtful.
He points out that it was odd that despite witnessing her husband murdered and her
brother-in-law poisoned, Helen did not make a statement to the police on what she
witnessed; that while the police took the sworn statement of Dominga, the mother of
Primo and Antonio, they did not take the statement of the widow, who allegedly saw
everything; and that even after meeting appellant face to face on the morning of May
13, 1992, no confrontation occurred between appellant and her. Furthermore, the
prosecution did not rebut appellant's testimony that Helen admitted to appellant that
she did not know what happened to her husband and brother-in-law. The prosecution
suggests that Helen's testimony was a mere concoction of the political opponents of
Mayor Aana and that Helen was coached on her testimony when it became apparent to
Ermac and Viva that Antonio would not testify the way they wanted.
The Office of the Solicitor General, for its part, contends that there is nothing unnatural
in Helen's failure to immediately disclose what she knew. The failure to reveal the
identities of the perpetrators should not impair her credibility since there is no set
standards of human behavior when one is confronted with a strange, striking, or
frightful experience. Moreover, she had her reasons to keep what she knew to herself.
The accused were her neighbors and they could easily cause her and her family harm.
Thus, the trial court, the OSG said, committed no error in relying on her testimony to
convict appellant.
Where the credibility of a witness is an issue, the established rule is that great respect is
accorded to the evaluation of the credibility of witnesses by the trial court. It is in the
best position to determine the issue of credibility of a witness, having heard his

testimony and observed his deportment and manner of testifying. 39 But, where there is a
showing that the trial court overlooked material and relevant facts, which could affect
the outcome of a case,40 the Court will not hesitate to set aside the lower court's
findings and assessments regarding the credibility of witnesses.
In giving full faith and credence to the testimonies of the prosecution witnesses, the trial
court explained:
The findings of the court relative to the credibility of the witnesses militate in
favor of the prosecution witnesses (citations omitted). The court took into
consideration 'the most important factor(s) (of) each witness, his manner and
behavior on the witness stand and the general characteristics, tone, tenor and
inherent probability of his statement (citations omitted)' for in most instances
'the demeanor of a witness on the witness stand is often a better evidence of his
veracity than the answer he gives (citations omitted)' and 'it is perfectly
reasonable to believe the testimony of a witness with respect to other parts.
Everytime when witnesses are found to have deliberately falsified some material
particulars it is not required that the whole of their uncorroborated testimony be
rejected but some portions thereof deemed worthy of belief may be credited.
(emphasis ours).41
On record the lower court heavily relied on the testimony of Helen. However, it did not
make any categorical finding as to her credibility or the veracity of her account.
We find Helen's testimony riddled with inconsistencies and improbabilities which could
affect the outcome of this case. Helen testified that upon hearing a different voice
downstairs, she peeped through a two-inch hole in the floor and saw, with the moonlight
cascading through the windows of the old mill, the accused forcibly make her husband,
Primo, swallow poison.42 On direct examination, she stated, she heard the words "Don't
move."43Under cross-examination, she said what she heard was "Don't move so that the
grenade will not be exploded." As the cross-examination progressed, however, she
declared that what she actually heard was "Don't move otherwise your family will be
included." She initially admitted that the first words were uttered by a voice unknown to
her. On further grilling by the defense, she claimed she recognized the voice as
appellant's Relentless cross-examination, however, yielded an admission that it was the
voice of accused Villamor she heard first.44 The identification of an accused through his
voice is acceptable, particularly if the witness knows the accused personally. 45 But the
identification must be categorical and certain. We observed that the witness changed
her version a number of times. A startling or frightful experience creates an indelible
impression in the mind such that the experience can be recalled vividly. 46 Where the
witness, however, fails to remain consistent on important details, such as the identity of
the person whose voice she heard, a suspicion is created that "material particulars" in
her testimony had indeed been altered. If an eyewitness contradicts himself on a vital
question, the element of reasonable doubt is injected and cannot be lightly
disregarded.47
Helen's testimony contained contradictory statements. In one instance she said she
witnessed the fatal poisoning of her husband by the accused because the mil was lit by
moonlight. In another instance she said the mill was dark and unlit. 48 On further cross-

examination she claimed that she witnessed the events because of the bright
moonlight.49 First, she said the moonlight was very bright50then later she said the moon
was not very full.51 The defense showed that during that night, five nights before its
fullness, the moon was in its first quarter52 and it was not as bright as a full moon. Note
also that Helen's view of the event was limited because she was only peeping through a
small hole. Under these conditions, Helen's flip-flopping testimony created serious
doubts regarding its veracity and credibility. Thus her testimony concerning the
destruction of the bamboo slats in one window of the mill invites serious doubt. The mill
had two windows covered with bamboo slats. To enter the mill through the windows, the
bamboo slats must be destroyed. Yet, Helen did not hear the sound of the bamboo slats
being destroyed, which was the only way the intruders could have entered.
Her testimony regarding the murder of her husband, Primo, is less than credible. She
said that while Primo struggled not to imbibe the poison, he did not utter a sound.
According to her, Primo could not utter a sound as his neck was "clipped", or
"headlocked" as the trial court puts it.53 There was no showing, however, that the
victim's mouth was muffled to prevent him from shouting for help. From her testimony,
she could have easily asked for help. It will be recalled that barangay captain and their
neighbors quickly responded to her mother-in-law's shout for help after seeing Primo's
corpse.54 Helen's account, that her husband violently struggled against his murderers
yet soundlessly gulped down the poison they made him drink, is unnatural. It evokes
disbelief. Evidence to be believed must not only proceed from the mouth of a credible
witness but it must also be credible by itself, and must conform to the common
experience and observation of mankind.55
As a rule, an eyewitness testimony cannot be disregarded on account of the delay in
reporting the event, so long as the delay is justified.56 In this case, Helen kept silent for
almost two years. She had no affidavit during the preliminary investigation. 57 It was only
at the trial that she came out to say she witnessed her husband's murder. She did not
explain why. Her long silence is out of character and appears inconsistent with her
behavior in immediately reporting to the police and the barangay captain an incident
when an unidentified man accosted her on the whereabouts of Antonio. 58
Additionally, on direct testimony, she declared that she knew that Antonio was found in
a hole filled with water on the morning of May 13, 1992. 59 Yet, cross-examination, she
declared that she did not know where his rescuers found Antonio that morning. 60 Such
contradictory statements tend to erode Helen's credibility as a prosecution witness and
raise serious doubt concerning the prosecution's evidence.
On the second issue, appellant submits that the trial court erred when it admitted and
gave much weight to the probative value of the "ante mortem" statement of
Antonio.61 Appellant contends that the statement can neither be considered as dying
declaration under Rule 130, Sec. 37 62 nor part of the res gestae under Rule 130, Section
42 63 of the Rules of Court. It is inadmissible for being hearsay. Furthermore, he avers it
was error for the trial court to give weight to the first affidavit of Antonio, 64 since Antonio
repudiated the same, stating that its contents were false. According to appellant,
Antonio claimed said affidavit was given under duress.
1wphi1.nt

The Solicitor General, for its part, argues that Antonio's actions during and immediately
after the incident were completely inconsistent with those of a person who allegedly
wanted to commit suicide. Hence, his retraction should be looked at with jaundiced eye,
following our ruling in People v. Junio, 237 SCRA 826 (1994), where we held that
retractions are generally unreliable and looked upon with considerable disfavor.
A dying declaration is the statement which refers to the cause and surrounding
circumstances of the declarant's death, made under the consciousness of an impending
death."65 It is admissible in evidence as an exception to the hearsay rule 66 because of
necessity and trustworthiness. Necessity, because the declarant's death makes it
impossible for him to take the witness stand67 and trustworthiness, for when a person is
at the point of death, every motive for falsehood is silenced and the mind is induced by
the most powerful consideration to speak the truth.68 The requisites for the admissibility
of a dying declaration are: (1) the death is imminent and the declarant is conscious of
that fact; (2) the declaration refers to the cause and surrounding circumstances of such
death; (3) the declaration relates to facts which the victim is competent to testify; (4)
the declaration thereafter dies; and (5) the declaration is offered in a criminal case
wherein the declarant's death is the subject of inquiry. 69
In the present case, the foregoing requisites were not met. A dying declaration is
essentially hearsay, because one person is testifying on what another person stated.
This is because the declarant can no longer be presented in court to identify the
document or confirm the statement, but more important, to be confronted with said
statement by the accused and be cross-examined on its contents. 70 It was patently
incorrect for the trial court to have allowed prosecution witness PO3 Leonardo Inoc to
testify on Antonio's so-called "dying declaration" because Antonio was alive and later
even testified in court.
But was the purported ante-mortem statement part of the res gestae? Where a victim's
statement may not be admissible as an ante mortem declaration, it may nonetheless be
considered as part of the res gestae, if made immediately after a startling occurrence in
relation to the circumstances thereof and when the victim did not have time to contrive
a falsehood.71 For res gestae to be allowed as an exception to the hearsay rule, the
following requisites must be satisfied: (1) that the principal act or res gestae be a
startling occurrence; (2) the statement is spontaneous or was made before the
declarant had time to contrive or devise, and the statement is made during the
occurrence or immediately prior or subsequent thereto; and (3) the statement made
must concern the occurrence in question and its immediately attending circumstances. 72
In this case, the element of spontaneity is lacking in the alleged antemortem statement. Antonio's statement was taken by PO3 Inoc at around 3:00 o'clock
P.M., May 14, 1992 or some thirty-nine (39) hours after the incident. Thirty-nine hours is
too long a time to be considered subsequent immediately (stress supplied) to the
startling occurrence. Even as contemplated by the rules, statements given a day after
the incident in answer to questions propounded by an investigator cannot be considered
part of the res gestae.73 Furthermore, the testimony of the declarant, that the statement
was made under threats and with coaching from losing candidates Ermac and Viva in
order to get even with the winning candidate, Mayor Aana, is uncontroverted. 74

Dying declarations and statements which form part of the res gestae are exceptions to
the hearsay rule, thus they must be strictly but reasonably construed and must extend
only insofar as their language fairly warrants.75 Thus, doubts should be resolved in favor
of applying the hearsay rule, rather than the exceptions. Under said rule, Antonio's socalled ante-mortem statement should not have been admitted in evidence, for it is
neither a dying declaration nor a part of res gestae.
Next we consider whether the trial court could properly rely on Antonio's affidavit dated
May 22, 1994 naming the persons responsible for the poisoning incident,
notwithstanding his subsequent repudiation of said affidavit. As a rule, retractions are
generally unreliable and are looked upon with considerable disfavor by the
courts76 because of the probability that recantation may later on be itself
repudiated.77 Furthermore, retractions can easily be obtained from witnesses through
intimidation or for monetary consideration,78 and a mere retraction does not necessarily
negate an earlier derclaration.79 When faced with a situation where a witness recants an
earlier statement, courts do not automatically exclude the original testimony. The
original declaration is compared with the new statement, to determine which should be
believed.80
In this case, the trial court rejected Antonio's retraction of his affidavit dated May 22,
1992, for being contrary to human experience and inherently unworthy of belief. The
trial court cited, by way of illustration, the portion of the affidavit where Antonio claimed
that after he and Primo agreed to commit suicide and drinking a bottle of insecticide,
Antonio wrote a farewell letter to his barangay-mates. We note, however, that Antonio's
second affidavit should have been rejected together with the first affidavit. Unless an
affiant himself takes the witness stand to affirm the averments in his affidavit, the
affidavit must be excluded from the judicial proceeding for being inadmissible
hearsay.81 In this case the affiant expressly refused to confirm the contents of his first
affidavit. Instead, he testified that said affidavit, Exhibit "E" was prepared under grave
threats and severe pressure from Ermac and Viva.82 His earlier affidavit's contents were
hearsay, hence inadmissible in evidence.
Noted further that Exhibit "E" and its sub-markings were offered, to prove that Antonio
testified in detail before NBI Agent Atty. Amador Robeniol about what happened to him
and his brother Primo in the hands of the five accused."83 Even if said Exhibit was
admissible, all that it proves is that Antonio testified and executed an affidavit before
the NBI. It does not prove the truthfulness of the allegations made and contained
therein.
Coming now to the third issue: has the prosecution succeeded in proving appellant's
guilt beyond reasonable doubt?
The records show that the only direct evidence linking appellant to the crimes charged
and for which he was convicted are the direct testimony of eyewitness Helen Hilbero
and the contents of Exhibit "E." But as discussed earlier, neither can be given much
probative value. As to the testimonies of the other prosecution witnesses, we find them
insufficient to convict appellant as none of them had any personal knowledge of facts
that would directly link appellant to the offenses charged. Even if these witnesses

testified in a straightforward and categorical manner, their testimonies contained


insufficient evidence to establish appellant's guilt beyond reasonable doubt.
Appellant's defense of denial in the present case is inherently weak. 84 Denial, if
unsubstantiated by clear and convincing evidence, is a negative and self-serving
evidence undeserving of any weight in law.85 But such weakness does not excuse the
prosecution from presenting the adequate quantum of proof of the crime charged. The
guilt of the accused must be proved beyond reasonable doubt. And the prosecution's
evidence must stand or fall on its own weight. It cannot rely on the weakness of the
defense. In the instant case, the prosecution failed to prove the guilt of appellant with
moral certainty. The testimony of its single purported eyewitness, while positive, was
less than credible. It did not meet the test such testimony of a lone witness to sustain a
judgment of conviction, must be both positive and credible.86 In our view, the burden of
proof required for conviction of appellant has not been adequately discharged by the
prosecution.
WHEREFORE, the decision of the Regional Trial Court of Tagbilaran City, Branch 1, in
Criminal Cases Nos. 7887 and 7888, finding appellant Arturo Enad guilty of murder and
frustrated murder is hereby REVERSED and SET ASIDE for insufficiency of the
evidence to convict him beyond reasonable doubt. Appellant is ACQUITTED and
ordered RELEASED from confinement immediately unless he is held for another lawful
cause.
SO ORDERED.

G.R. No. 142654

November 16, 2001

PEOPLE OF THE PHILIPPINES, appellee,


vs.
ROLANDO MENDOZA y CARPIO, appellant.
Criminal Law; Murder; Evidence; Credibility of Witnesses; The findings of the trial court
on this matter should not be disturbed on appeal, unless the latter has overlooked some
facts or circumstances of substance and value which, if considered, might well affect the
result of the case.Time and time again, this Court has declared that the findings of the
trial court on this matter should not be disturbed on appeal, unless the latter has
overlooked some facts or circumstances of substance and value which, if considered,
might well affect the result of the case. This doctrine is premised on the undisputed fact
that, since the trial court has the best opportunity to observe the demeanor of
witnesses while on the stand, it can discern whether or not they are telling the truth.
The unbending jurisprudence is that its findings on the matter of credibility of witnesses
are entitled to the highest degree of respect and will not be disturbed on appeal.
Same; Same; Same; Same; Minor inconsistencies in the narration of witnesses do not
detract from their essential credibility as long as their testimonies are coherent and
intrinsically believable on the whole.Considering the lapse of time and the treachery
of human memory, truth-telling witnesses are not always expected to give error-free

testimonies. They are not expected to remember every single detail of an incident with
perfect or total recall. This Court has stated time and time again that minor
inconsistencies in the narration of witnesses do not detract from their essential
credibility as long as their testimonies are coherent and intrinsically believable on the
whole. Inaccuracies may in fact suggest that they are truthful and unrehearsed.
Same; Same; Same; Same; Affidavits; Affiants are not necessarily discredited by
discrepancies between their testimonies on the witness stand and their ex-parte
statements which are generally incomplete; Testimonial evidence carries more weight
than an affidavit.The alleged conflict between the sworn statement and the testimony
of Mariquit does not vitiate his credibility as a witness. It has been held that affiants are
not necessarily discredited by discrepancies between their testimonies on the witness
stand and their ex parte statements, which are generally incomplete. Basic is the rule
that affidavits taken ex parte are judicially considered to be incomplete and often
inaccurate, sometimes from partial suggestions and sometimes from want of
suggestions and inquiries, without the aid of which witnesses may be unable to recall
the connected circumstances necessary for their accurate recollection. Affidavits are
generally subordinated in importance to open court declarations, because the former
are often executed when affiants mental faculties are not in such state as to afford
them a fair opportunity to narrate in full incidents that have transpired. Moreover,
testimonial evidence carries more weight than an affidavit.
Same; Same; Same; Dying Declaration; Requisites Before a Dying Declaration May be
Admissible.A dying declaration, also known as an ante-mortem statement or a
statement in articulo mortis, is admissible under the following requisites: (1) death is
imminent and the declarant is conscious of that fact, (2) the declaration refers to the
cause and the surrounding circumstances of such death, (3) the declaration relates to a
fact which the victim is competent to testify to, and (4) the declaration is offered in a
case wherein the declarants death is the subject of the inquiry.
Same; Same; Same; Same; Issue of whether a declaration was made under the
consciousness of an impending death is a matter of evidence.The issue of whether a
declaration was made under the consciousness of an impending death is a matter of
evidence. It must be shown that such declaration was made under a realization that one
s demise or at least its imminence, not so much its rapid occurrence, was at hand. This
may be proven by the statement of the victim or inferred from the nature and extent of
the victims wounds or other relevant circumstances.
Same; Same; Same; Same; The occurrence of a declarants death immediately
thereafter is not indispensable.The fact that the victim did not expire right after his
declaration, but survived seven days thereafter, will not alter the probative force of his
dying declaration. The occurrence of a declarants death immediately thereafter is not
indispensable. The rule on dying declarations does not require that the person should
be at the time in the throes of death, or that he should die immediately, or within any
specified time thereafter, in order to give the declaration probative force xxx.
Same; Same; Same; Treachery; Requisites to Prove Treachery.To prove treachery, the
following must be shown: (1) the employment of such means of execution as would give

the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate
and conscious adoption of the means of execution.
Same; Same; Same; Same; Same; The prosecution must prove that appellant
deliberately and consciously adopted such means, method or manner of attack as would
deprive the victim of an opportunity for self-defense or retaliation.Without any
particulars as to the manner in which the aggression commenced or how the act that
resulted in the victims death unfolded, treachery cannot be appreciated. It is not
sufficient that the victim was unarmed and that the means employed by the malefactor
brought the desired result. The prosecution must prove that appellant deliberately and
consciously adopted such means, method or manner of attack as would deprive the
victim of an opportunity for self-defense or retaliation.
Same; Same; Same; Same; The same degree of proof to dispel any reasonable doubt is
required before treachery may be considered as an aggravating or a qualifying
circumstance.We have ruled in a litany of cases that treachery cannot be presumed; it
must be proved by clear and convincing evidence or as conclusively as the killing itself.
The same degree of proof to dispel any reasonable doubt is required before treachery
may be considered as an aggravating or a qualifying circumstance. Hence, where the
circumstances surrounding either the manner of the attack or how the aggression was
commenced has not been proven, as in this case, the appellant should be given the
benefit of the doubt, and the crime should be considered only as homicide defined and
penalized under Article 249 of the Revised Penal Code. [People vs. Mendoza, 369 SCRA
268(2001)]
PANGANIBAN, J.:
The reasons for the admissibility of a dying declaration as an exception to the hearsay
rule are (a) necessity and (b) trustworthiness. Necessity, because death renders a
declarant's taking the witness stand impossible, and it often happens that there is no
other equally satisfactory proof of the crime. Hence, the declaration is allowed to
prevent a failure of justice. And trustworthiness, for in the language of Lord Baron Eyre,
the declaration is made in extremity, when the party is at the point of death and every
hope of this world is gone, when every motive for falsehood is silenced and the mind
induced by the most powerful considerations to speak the truth. A situation so solemn
and awful is considered by the law as creating an obligation equal to that which is
imposed by an oath administered in court.1 The idea, more succinctly expressed, is that
"truth sits on the lips of dying men."2
The Case
Before us is an appeal from the March 15, 2000 Decision3 of the Regional Trial Court
(RTC) of Caloocan City (Branch 127) in Criminal Case No. C-55995 (99), convicting
Rolando Mendoza of murder and sentencing him toreclusion perpetua.
The decretal portion of the RTC Decision reads as follows:

"WHEREFORE premises considered and the prosecution having established to a


moral certainty the guilt of Accused ROLANDO MENDOZA of the crime of murder
as defined and penalized under Art. 248 of the Revised Penal Code as amended
by RA 7659, this Court hereby sentences the said accused to suffer the penalty of
reclusion perpetua; to indemnify the legal heirs of the deceased the civil
indemnity of P50,000.00; to compensate MELY CRUZ [for] the stipulated actual
damages of P65,000.00; to pay Mrs. BEATRIZ VALDOZ moral damages of
P40,000.00 and to pay the costs, without any subsidiary imprisonment in case of
insolvency.
"The preventive imprisonment suffered by the accused shall be credited in full in
the service of his sentence in accordance with Art. 29 of the Revised Penal
Code."4
The Information,5 dated January 27, 1999, charged appellant, together with his coaccused Reynaldo Balverde, as follows:
"That on or about the 11th day of October, 1998 in Caloocan City, Metro Manila
and within the jurisdiction of this Honorable Court, the above-named accused,
without any justi[fi]able cause, conspiring together and mutually aiding one
another, with deliberate intent to kill and with treachery and evident
prem[e]ditation, did then and there wil[l]fully, unlawfully and feloniously attack,
assault and stab with bladed weapons on the different parts of his body one
PRUDENCIO VALDOZ Y SANTOS, thereby inflicting upon the latter serious physical
injuries which injuries caused the victim's death at East Avenue Medical Center
after several days of confinement."6
On March 15, 1999, the trial court issued warrants of arrest 7 against the two accused.
Herein appellant was arrested on October 19, 19998 but his co-accused, Balverde, has
remained at large. When arraigned on November 3, 1999, appellant pleaded 9 not guilty
after the Information had been read and interpreted to him in a language that he fully
understood.10 After pretrial, trial on the merits ensued against him alone. Thereafter, the
lower court promulgated its assailed Decision. The Public Attorney's Office, counsel for
appellant, filed the Notice of Appeal on March 27, 2000. 11
The Facts
Version of the Prosecution
In its Brief,12 the Office of the Solicitor General presents the prosecution's version of the
facts as follows:
"About 8:00 in the evening of October 11, 1998, Eduardo Mariquit was walking on
his way home from his sister's house. While traversing Sta. Rita Street, San
Vicente Ferrer, Tala, Caloocan City, he saw Prudencio Valdoz repeatedly stabbed
by appellant Rolando Mendoza alias 'Patsy' and Reynaldo Balverde, Jr. alias
'Jingjing.' Using a kitchen knife, appellant stabbed Prudencio Valdoz on the
stomach. Likewise, Reynaldo Balverde stabbed Prudencio twice with a butcher's
knife, hitting the latter below the left armpit. Wounded, Prudencio Valdoz
staggered and collapsed. Reynaldo Balverde alias 'Jingjing' approached Eduardo

Mariquit and warned him saying 'wala kang nakita, wala kang narinig.'
Thereafter, appellant and Reynaldo Balverde fled. Eduardo Mariquit went to help
Reynaldo Valdoz. He assisted him in going to his house which was about twelve
(12) meters away. Eduardo Mariquit thereafter went to see the victim's brother,
Manuel Valdoz, and informed him that Prudencio was stabbed by appellant
Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing.'
"Meanwhile, Estrellita Carmelo was watching TV inside her house at 587
Barangay Sta. Rita, Tala, Caloocan City, when she noticed a commotion taking
place outside. She heard people shouting that somebody was stabbed. Estrellita
Carmelo went out and saw Prudencio, her neighbor and co-worker, lying still and
wounded. Estrellita Carmelo, accompanied by her neighbors, brought Prudencio
to the Tala Hospital in a tricycle. Because the Tala Hospital lacked the necessary
equipment to treat the victim, he was transferred to East Avenue Medical Center
in Quezon City. Inside the operating room, Prudencio Valdoz beckoned to
Estrellita Carmelo to come near him. When Estrellita moved closer and placed
her ear near Prudencio's mouth, Prudencio, who was in great pain, told Estrellita .
. ., 'Ate, baka mamatay ako sasabihin ko sa iyo kung sino an[g] sumaksak sa
akin, tandaan mo lang huwag mong kalimutan.' Prudencio told Estrellita that
Rolando Mendoza alias 'Patsy' and Reynaldo Balverde alias 'Jingjing' stabbed him.
Estrellita Carmelo stayed with the victim at the hospital till the next day.
"The following day, Manuel Valdoz called the police. PO3 Alex Barroga of the
Caloocan City Police Station 6 arrived in the morning at the East Avenue Medical
Center. He interviewed the victim and took his statements. In the presence of his
relatives and Estrellita Carmelo, the victim, who was gasping for breath, gave his
ante mortem statement. He pointed to appellant Rolando Mendoza alias 'Patsy'
and Reynaldo Balverde alias 'Jingjing' as the persons who stabbed him. The
victim affixed his signature on the ante mortem statement, with Manuel Valdoz
and Merle Valdoz as witnesses.
"On October [1]9, 1998, the victim died.
"Police Superintendent Ma. Cristina B. Freyra, Medico-Legal Officer, PNP Crime
Laboratory Services, Camp Crame, Quezon City conducted an autopsy on the
cadaver of the victim. In a Medico-Legal Report No. M-1595-98, dated October 3,
1998, Dr. Freyra stated the following findings and conclusion:
'FINDINGS:
POSTMORTEM FINDINGS:
Fairly nourished, fairly developed, male cadaver in rigor mortis with
postmortem lividity at the dependent portions of the body. The conjunctiva
lips and nailbeds are pale. There is a surgical incision along the anterior
midline of the abdomen, measuring 35 cm long with 34 stitches applied,
including 6 tension sutures. Needle puncture marks noted at the distal 3rd
of both firearms.

TRUNK:
1) Stab wound, epigastric region measuring 2.6 cm long with 4 stitches
applied, 13 cm left of the anterior midline, 120 cm from the heel, 6 cm
deep, directed posteriorwards, upwards and medialwards, piercing the left
dome of the diaphragm which was surgically repaired.
2) Stab wound, periumbilical region, measuring 1 cm long, just left of the
anterior midline, 105 cm from the heel, 9 cm deep, directed
posteriorwards, upwards and medialwards, piercing the head of the
pancreas and the loops and mesentery of the small intestine.
3) Stab wound, left anterior lumbar region, measuring 1.5 cm long with 2
stitches applied, 19 cm from the anterior midline, 96 cm from the heel, 9
cm deep, directed posteriorwards, upwards and medialwards, piercing the
loops and mesentery of the small intestine.
There is thick greenish yellow exudate in the abdominal cavity.
Stomach is empty.
The rest of the visceral organs are grossly unremarkable.
CONCLUSION:
Cause of death is septic shock secondary to multiple wou[n]ds, trunk S/P
Exploratory laparotomy.'
"Dr. Freyra declared that a typographical error was committed by the typist who
inadvertently omitted to state Stab Wound No. 3 in the Medico-Legal Report. Dr.
Freyra thus indicated in her own handwriting, Stab Wound No. 3 as follows:
'STAB WOUND NO. 3 ANTERIOR LUMBAR REGION, MEASURING 2 CM
LONG WITH 1 STITCH APPLIED 14 CM FROM MIDLINE ANTERIOR, 107 CM
FROM THE HEEL, 5 CM DEEP, DIRECTED POSTERIOR, UPWARD, AND
MEDIALWARD, PIERCING THE LOOP AND MESENTERY OF SMALL INTESTINE.'
"Dr. Freyra further declared that the four (4) stab wounds sustained by the victim
were all fatal."13(Citations omitted)
Version of the Defense
Appellant denies participation in the killing of Prudencio Valdoz.14 He adds that the trial
court gave too much weight and credence to the allegedly uncredible testimony of
prosecution's principal witness. Appellant reproduced the trial court's narration of the
facts, as follows:15
"Evidence for the Defense

"As summarized by the trial court, the evidence for the defense, on the other
hand, is quoted hereunder:
"At past 8:00 p.m. of 11 October 1998, he (Accused MENDOZA) with coaccused REYNALDO BALVERDE, JR., @ JING-JING (accused BALVERDE for
short) was walking home toward Dr. Puno Street, Barrio Sta. Rita North,
Tala, this City coming from Sta. Rita South. Upon reaching the closed store
of the BALVERDE, they saw Victim standing thereat with both hands
tucked in his pockets. Thereupon Accused BALVERDE asked Victim how
come he was still there at that time and the latter, who was apparently
drunk, retorted: 'BAKIT, ANONG PAKIALAM MO.' Thence Accused BALVERDE
instructed Victim to go home but instead of acceding thereto Victim
cursed him. At this juncture Accused MENDOZA intervened and after
pacifying [the] victim, prevailed upon him to go home. As the latter was
walking toward his house, Accused BALVERDE asked if they would still
watch VHS tape but he failed to receive any answer, hence, Accused
MENDOZA decided to go home. After negotiating a distance of about ten
(10) meters accused MENDOZA looked back and saw Accused BALVERDE
hurriedly walking uphill toward the direction of Victim, prompting accused
Mendoza to follow him. While about 8 to 9 meters away from Accused
BALVERDE, Accused MENDOZA called his name and in the process Victim
whose attention was also alerted thereby, turned around and the next
thing Accused MENDOZA saw was Accused BALVERDE and the victim
engaging themselves in a fist-fight. Upon approaching the duo, Accused
MENDOZA held with his left hand the right hand of Accused BALVERDE
which was in Victim's waist and at the same time holding with his right
hand Victim's arm, and then he pushed the protagonists, telling them:
'ANO BA KAYO PARANG HINDI TAYO MAGKAKILALA.' Considering that the
source of illumination at the scene was an electric post which was quite
far, accused MENDOZA was unable to see clearly what actually transpired
between the duo, except that he noticed when Victim raised his left arm
and simultaneously uttering: 'Hah' before walking ahead and at about a
distance of 4 to 5 meters away he fell to the ground on his bended knees.
Thinking that this was only brought about by victim's state of
drunkenness, accused MENDOZA approached the Victim to take him
home. At that instance, accused MENDOZA's brother-in-law JOSELITO
GUTIERREZ (JOSELITO for short) and a certain teenager arrived and helped
him (Accused MENDOZA) in lifting the Victim who when exposed to the
light, they saw his T-shirt to be soaking with blood. At that instance,
accused MENDOZA spotted accused BALVERDE running away uphill, thus,
he tried to follow the latter to hold him answerable to whatever he did to
victim. However, he lost track of accused BALVERDE when the latter
entered an alley, hence, accused MENDOZA returned to where he came
from and seeing victim already on board a tricycle with some companions
including JOSELITO who was in another tricycle he decided to go home;
that he never went to the police to identify the real assailant of victim;
that he worked as a painter in Antipolo but used to go home every
weekend and it was on 19 October 1999 when the police arrested him in
connection with this case. Accused MENDOZA further stated that

prosecution witness EDUARDO MARIQUIT must have entertained a grudge


against him for reason that three weeks prior to the incident he drove him
away without giving him anything to eat since their food at the table were
just enough for the family especially his children and that before this,
MARIQUIT used to drop-by their house on Sundays to beg for some food." 16
Ruling of the Trial Court
In finding appellant guilty of murder, the court a quo gave full faith and credence to the
testimony of the prosecution's principal witness, Eduardo Mariquit, who had positively
identified appellant as the perpetrator of the crime. It likewise accepted the
antemortem statement of the victim regarding his death and deemed such statement to
have been made under the consciousness of impending death. These circumstances
were held to prevail over appellant's defense of denial. Finally, the lower court also ruled
that the killing was attended by treachery.
Hence, this appeal.17
The Issues
In his appeal before us, appellant assigns the following alleged errors for our
consideration:
"I
The trial court erred in giving too much weight and credence to the incredible
testimony of the prosecution's principal witness anent the subject incident and in
totally disregarding the testimony of the accused-appellant to the effect that it
was his co-accused who stabbed the victim.
"II
The trial court erred in giving probative value to the alleged ante-mortem
statement of the victim.
"III
The trial court erred in convicting the accused-appellant of the crime charged
despite want of moral certainty.
"IV
On the assumption however that the accused-appellant is guilty, the trial court
erred in convicting him of murder since the qualifying circumstance of treachery
was not present relative to the incident in question."18

For a more systematic presentation, we shall reclassify the above alleged errors into
three: (1) credibility of the witnesses, (2) evaluation of the antemortem statement, and
(3) presence of treachery.
The Court's Ruling
The appeal is partly meritorious.
First Issue:
Credibility of the Witnesses
As in most criminal cases, the crux of the controversy lies in the valuation of the
credibility of the prosecution witnesses vis--vis the denial presented by the defense.
Appellant rejects the testimony of Mariquit and submits that "contrary to the . . . finding
of the trial court, [his] testimony . . . anent the subject incident leaves much to be
desired."19 Appellant alleges that said testimony was "replete with material
inconsistencies, if not contradictions on equally substantial points."20
We disagree. Categorical, candid and convincing was Mariquit's testimony, which
positively pointed to appellant and his co-accused, Balverde, as the culprits. As in most
criminal cases, the linchpin in the resolution of the instant case is the credibility of the
witnesses.
Time and time again, this Court has declared that the findings of the trial court on this
matter should not be disturbed on appeal, unless the latter has overlooked some facts
or circumstances of substance and value which, if considered, might well affect the
result of the case. This doctrine is premised on the undisputed fact that, since the trial
court has the best opportunity to observe the demeanor of witnesses while on the
stand, it can discern whether or not they are telling the truth. 21 The unbending
jurisprudence is that its findings on the matter of credibility of witnesses are entitled to
the highest degree of respect and will not be disturbed on appeal. 22Appellant herein has
not given the Court sufficient reason to deviate from this doctrine.
He contends that the court a quo erred in giving credence to Mariquit's testimony, which
supposedly suffered from inconsistencies and contradictions on material points. He also
points out several contradictions between the sworn statement and the court testimony
of the said witness on what transpired before, during and after the stabbing of Valdoz.
First, while Mariquit testified that he had witnessed the stabbing incident, he also stated
during the cross-examination that it was only when he was on his way home that he
met the victim holding the latter's bloodied stomach. According to appellant, this
inconsistency becomes more apparent in the sworn statement of this witness. Second,
the latter intimated therein that the other accused, Balverde, was holding a butcher's
knife while choking and trying to stab the former. The same witness testified in open
court, however, that Balverde had merely approached and told him, "Wala kang nakita,
wala kang narinig."23

Third, the witness was allegedly inconsistent on the events that transpired after the
stabbing incident. While he testified earlier that he had gone home thereafter, he told
the court later on that he had actually helped and even brought the victim to the latter's
house. Fourth, appellant assails the witness' testimony on the number of stab wounds
sustained by the victim, because this figure was belied by the medical findings. Fifth,
appellant argues that while Mariquit insisted that he witnessed the incident, such
assertion was contradicted by the latter's testimony during trial. The said witness
admitted therein that he met appellant only after the former had relayed the occurrence
to the victim's brother.
Refutation of Alleged Discrepancies
We begin by stating that Mariquit testified in a categorical, straightforward, consistent
and spontaneous manner on how appellant and Balverde had stabbed and killed Valdoz,
as follows:
"PROS. SISON WITNESS:
Q
Will you please tell the Honorable Court where were you on October 11,
1998 at about 8:00 in the evening?
A

I was on my way home, sir.

From where did you come from at that time?

In the house of my sister, sir.

COURT: (butts in)/WITNESS:


Q

Wait, where is the house of your sister located?

Same place, Your Honor.

What same place?

Sta. Rita, San Vicente Ferrer, Tala, Caloocan City, Your Honor.

PROS. SISON/TO WITNESS:


Q

While walking to your residence, what happened if there was any?

I saw Jingjing and Patsy on my way home, sir.

When you saw them what happened?

When I saw them they were stabbing Boy Valdoz, sir.

And what happened next?

A
Jingjing approached me and told me 'WALA KANG NAKITA, WALA KANG
NARINIG.'"24
xxx

xxx

xxx

"Q If you can see this Patsy again will you be able to identify him?
A

Yes, sir.

Q
now?

Will you look around the courtroom and point at him if he is here right

(Witness pointing to accused Rolando Mendoza.)

Q
Of course, if you can see Jingjing again you will be able to identify him
also just like accused Rolando Mendoza?
A

Yes, sir.

Q
Now, you said that it was accused Rolando Mendoza and a certain Jingjing
who stabbed Prudencio Valdoz?
A

Yes, sir.

Q
How did you know that Rolando Mendoza and Jingjing were the ones who
stabbed Boy Valdoz?
A
xxx

'Nakita ko po.'"25
xxx

xxx

"Q You said a while ago that Prudencio Valdoz was stabbed by Jingjing and Patsy,
was Prudencio Valdoz hit?
A

Yes, sir.

Why did you say that he was hit by those stab thrust[s]?

'Nakita ko po.'

Why, what happened to him after the stabbing?

He was able to take a few steps before he fell, sir.

Q
Now, will you tell us what kind of bladed weapon that was used in
stabbing Prudencio Valdoz?
A

'Kutsilyo and a butcher's knife, sir.'

Who was then holding that butcher's knife?

Jingjing, sir.

Describe that butcher's knife which you said held by Jingjing?

About a foot long, sir.

COURT:(butts in)/WITNESS:
Q

Including the handle?

A
More than a foot long including the handle and about and inch thick, Your
Honor.
PROS. SISON:/WITNESS:
Q

How about that kutsilyo held by Patsy?

Six (6) to seven (7) inches including the handle, sir.

COURT:(butts in)/WITNESS:
Q

How about the blade, how thick?

About an inch thick, Your Honor."26

xxx

xxx

xxx

"Q
You said, you actually saw the stabbing, you tell this Court how it was
done. Let us go first to Jingjing, how did he stab the victim?
A
(The witness demonstrated how Jingjing stabbed the victim by his right
hand.)
Q

How many thrust[s]?

Isa lang po ang nakita ko.

Fronting to each other?

Yes, Your Honor.

How about Patsy how did he stab the victim?

'Patagilid po.' Hitting the victim below the left armpit, Your Honor.

How many thrust[s] did Patsy deliver?

Two (2) Your Honor.

And [did] those thrust[s] hit the victim?

Yes, Your Honor.

What part of the body?

(The witness pointing at the side of the body, below the left armpit.)

Are you sure?

'Sigurado po.'"27

The trial court even noted that "despite the efforts, albeit futile, exerted by the defense
counsel to get from the mouth of Mariquit what he wanted the latter to say, the fact
remains that said witness was steadfast and consistent in his answer [that he had] seen
the actual stabbing of the victim by [the] accused [and] the court is inclined to believe
[it,] being replete with details which only a person who truly witnessed the event could
relate."28
Regarding the fact that Mariquit testified that he met the victim only after the incident,
this does not in any way negate the former's testimony on having actually witnessed
the stabbing. This much can be gleaned from his testimony in court:
"Q
Why did you say in your Sinumpaang Salaysay which was shown to you by
the Defense Counsel in paragraph 2, you said 'nasalubong ko si Prudencio Valdoz
na duguan sapo ang kanyang tiyan,' why did you say that?
A

'Nakita ko po at, tinulungan ko siya.'

PROS. SISON:
There is no inconsistency because the stabbing comes first than the
meeting of the victim.
COURT:
It[']s very clear in the Sworn statement that he was walking then he met
Prudencio bloodied holding his stomach.
COURT:/WITNESS:
Q

Which is true now?

'Nakita ko po ang pangyayari.'

Why did you not tell that in your Sworn Statement?

'Hindi ko po alam ang gumawa niyan, yung Pulis ang gumawa niyan.'

But you said, it was read to you by the Police?

Yes, Your Honor.

Why did you not invite the attention of the Police?

'Wala na po.'

What do you mean by wala na po?

'Wala na po akong magagawa kasi napirmahan na.'"29

The stabbing incident indeed came before Mariquit could meet the victim. The witness
never testified that he had arrived only after the stabbing incident and met the victim
afterwards. His categorical and positive statement was that he witnessed the stabbing
and met the victim afterwards. In fact, even during his cross-examination, he reiterated
the fact that he had witnessed the stabbing and seen the victim and the assailants
including appellant.
As to the events that transpired after the incident, appellant suggests that Mariquit
gave inconsistent statements on whether the latter had just gone home afterwards or
indeed helped the victim reach home. We see no material inconsistency in the
statements of the said mess either in his affidavit or in his testimony in court.
Appellant attempts to muddle the events by alleging that the statements of Mariquit
contained inconsistencies. Those inconsistencies, however, appear to touch merely on
the order of the events as they transpired. These are of minor import and do not shatter
altogether the credibility or the testimony of this witness. The fact that he met appellant
and his co-accused after the stabbing did not mean that he could not have witnessed
the stabbing. One event necessarily comes after the next.
Granting there were inconsistencies, these do not detract from the fact that appellant
was positively identified by Mariquit as one of the assailants. This conclusion is
supported by both the affidavit of the latter and his testimony in court. The same is true
of his statement as to what Balverde did or said to him after the incident. Judging from
his consistent assertions, Mariquit was clearly threatened by Balverde.
Finally, as to the alleged error in the statement of Mariquit on the number of stab
wounds inflicted on the victim, it would be unfair to expect the former to ascertain an
exact figure in a startling event like a killing. A fair estimate is enough. The important
thing is that the stabbing took place, the victim died, and the witness identified the
culprits.30
Recall of All Details Not Required

Considering the lapse of time and the treachery of human memory, truth-telling
witnesses are not always expected to give error-free testimonies.31 They are not
expected to remember every single detail of an incident with perfect or total
recall.32 This Court has stated time and time again that minor inconsistencies in the
narration of witnesses do not detract from their essential credibility as long as their
testimonies are coherent and intrinsically believable on the whole.33 Inaccuracies may in
fact suggest that they are truthful and unrehearsed.
Likewise, the alleged conflict between the sworn statement and the testimony of
Mariquit does not vitiate his credibility as a witness. It has been held that affiants are
not necessarily discredited by discrepancies between their testimonies on the witness
stand and their ex parte statements, which are generally incomplete.34 Basic is the rule
that affidavits-taken ex parte are judicially considered to be incomplete and often
inaccurate, sometimes from partial suggestions and sometimes from want of
suggestions and inquiries, without the aid of which witnesses may be unable to recall
the connected circumstances necessary for their accurate recollection.35Affidavits are
generally subordinated in importance to open court declarations, because the former
are often executed when affiants' mental faculties are not in such state as to afford
them a fair opportunity to narrate in full incidents that have transpired. 36 Moreover,
testimonial evidence carries more weight than an affidavit.37
The responsibility of appellant for Valdoz's death was indubitably established by both
the sworn statement and the testimony of the said witness.
Appellant vigorously denies any participation in the death of Valdoz, maintaining that it
was Balverde who actually stabbed and killed the victim. In the light of the positive
identification of appellant as the perpetrator of the crime, this denial cannot be
sustained.38 Naturally, he would pass the blame to his co-accused in the belief that the
latter, who has not yet been apprehended, will be in no position to contradict the
former's assertions. Appellant ascribes ill motive to Mariquit. The latter allegedly
testified the way he did, because the former had driven him away without giving him
anything to eat. We agree with the trial court in assessing such argument as flimsy,
when it ruled as follows:
"Anent the ill-motive, supra, ascribed by the Accused against MARIQUIT for
testifying the way he did against him in that 3 weeks prior to the incident,
Accused has had the occasion to drive away MARIQUIT without giving him
anything to eat for reason that the food they had on the table were just enough
for his children and that MARIQUIT was admittedly the beneficiary of the dole
outs in kind and/or cash from Victim's brother MANUEL VALDOZ, this was given
scant consideration by this Court, finding the same to be flimsy may not good
enough reason for anyone to implicate to a commission of a heinous crime, an
otherwise innocent acquaintance. Furthermore, this Court had observed closely
the conduct and deportment of MARIQUIT on the witness stand and definitely it is
not to be lightly supposed that he would be capable of callously violating his
conscience by blaming the murder of Victim upon the Accused who he believed
to be innocent thereof. Indeed there are authorities to the rule that the courts
have always been cautious in dealing with the allegation of ill-will on the part of
witnesses because of the facility by which accused can concoct the same." 39

Second Issue:
Evaluation of the Antemortem Statement
Equally important is the fact that the evidence of the prosecution is corroborated not
only by Mariquit's positive identification of appellant, but also by the victim's
antemortem statement given both to the police and to Estrellita Carmelo, a co-worker.
Such declaration identified appellant and Balverde as the assailants.
Antemortem statements are governed by Section 37 of Rule 130 of the Rules of Court,
which is reproduced as follows:
"Sec. 37. Dying Declaration The declaration of a dying person, made under the
consciousness of an impending death, may be received in any case wherein his
death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death."
A dying declaration, also known as an antemortem statement or a statement in articulo
mortis, is admissible under the following requisites: (1) death is imminent and the
declarant is conscious of that fact, (2) the declaration refers to the cause and the
surrounding circumstances of such death, (3) the declaration relates to a fact which the
victim is competent to testify to, and (4) the declaration is offered in a case wherein the
declarant's death is the subject of the inquiry.40
Disputed in this case is the first requisite. The issue of whether a declaration was made
under the consciousness of an impending death is a matter of evidence. 41 It must be
shown that such declaration was made under a realization that one's demise or at least
its imminence, not so much its rapid occurrence, was at hand.42 This may be proven by
the statement of the victim or inferred from the nature and extent of the victim's
wounds or other relevant circumstances.43
Appellant specifically impugns the antemortem statement made by the victim before
PO3 Alex Barroga on October 12, 1998, alleging that it was not made under a
consciousness of impending death. That Valdoz was still strong, as testified to by his
brother, is what appellant tries to impress upon this Court, so as to negate
consciousness of imminent death.
We are not persuaded by appellant's arguments. First, the testimony of the brother of
Valdoz regarding the latter's state of health relates to the days after the antemortem
statement was made. As clearly testified to by the brother of the victim, the former's
conversation with the latter had occurred between October 16 and 18, 1998; and the
antemortem statement, on October 12, 1998. The brother testified that, at the time, the
victim seemed strong enough to even move and sway his body to demonstrate how he
had been stabbed. This fact, however, did not necessarily show that when the
antemortem statement was taken four days earlier, the victim was not under a
consciousness of death. The brother's testimony did not in any way negate the victim's
consciousness of impending death at the time the dying declaration was made.
Statement Reflects Consciousness of Death

Second and more important, the antemortem statement itself reflects Valdoz's
consciousness of impending death in this wise:
"03.
TANONG Sa palagay mo, ikamamatay mo ang tinamong sugat sa
pagsaksak sa iyo?
S

Opo."44

Furthermore, judging from the nature and the extent of his wounds, there can be no
other conclusion than that the victim must have realized the seriousness of his
condition.
Ma Cristina Freyra, the medico legal officer who had conducted the autopsy examination
on the victim, testified as to the degree and seriousness of the stab wounds suffered by
the latter, as follows:
"xxx

xxx

xxx

Q:
[Y]ou mentioned madam witness that sta[b] wound No. 3 was not
indicated here in this Report No. M-1595-98, will you please tell the honorable
court the nature of that stab wound?
WITNESS:
A:

[I]t was indicated on the left side of the abdomen and also fatal wound sir.

Q:

[W]hy did you say it was also fatal wound?

A:
[I]n fact all the wounds are fatal because they penetrated the left dome of
the diaphragm and the small intestines sir."45
Clearly, not only did the victim express in words his consciousness of his inevitable
demise; the very nature of his wounds indubitably generated a consciousness that
death was near.
Finally, the fact that the victim did not expire right after his declaration, but survived
seven days thereafter, will not alter the probative force of his dying declaration. The
occurrence of a declarant's death immediately thereafter is not indispensable. 46 The rule
on dying declarations does not require that the person "should be at the time in the
throes of death, or that he should die immediately, or within any specified time
thereafter, in order to give the declaration probative force. Where a person has been
fatally wounded, is in sore distress therefrom, and believes that he will not recover and
is soon to die, his statement made in this belief relating to the cause of his injury is
admissible, if it appears that he subsequently died from the direct effects of the wound,
although he may have revived after making the statements or may have lived a
considerable time thereafter, and may have again begun to hope for recovery."47

It must also be noted that the victim made another antemortem statement to his coworker, Estrellita Carmelo. This oral statement passes the requisites of a dying
declaration as discussed earlier. That it was made under a consciousness of imminent
death is without question, as shown by the witness' testimony which we quote:
"xxx

xxx

xxx

Q:
Upon arrival at the [e]ast [a]venue [m]edical [c]enter[,] what happened
there?
A:
When I was inside the hospital Prudencio Valdoz was signaling me to come
near him sir.
Q:

Where was he at the time the victim was signalling you to come near him?

A:

Inside the operating room sir.

Q:

Did you approach Prudencio Valdoz?

A:

Yes sir.

Q:

When you were already near him, what transpired?

A:
I placed my ear directly in to his mouth and he said something although he
was suffering from pain.
Q:

Did you ask any question to him?

A:

Yes sir.

Q:

What was that question?

A:

Who stabbed him sir.

Q:

And what was [the] answer?

A:
Sir Rolando Mendoza and Reynaldo Balverde. Rolando Mendoza alias Patsy
and Reynaldo Balverde alias Jing-Jing.
Q:

Now what else did the victim Prudencio Valdoz tell you?

A:
Prudencio Valdoz told me, ate, baka mamatay ako sasabihin ko sa iyo kung
sino ang sumaksak sa akin, tandaan mo lang huwag mong kalimutan." 48
Third Issue:
Presence of Treachery

Be that as it may, we do not agree with the finding of the trial court that treachery
attended the killing. To prove treachery, the following must be shown (1) the
employment of such means of execution as would give the person attacked no
opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption
of the means of execution.49 It is also the running case law that where treachery is
alleged, the manner of attack must be proven. Without any particulars as to the manner
in which the aggression commenced or how the act that resulted in the victim's death
unfolded, treachery cannot be appreciated.50 It is not sufficient that the victim was
unarmed and that the means employed by the malefactor brought the desired result.
The prosecution must prove that appellant deliberately and consciously adopted such
means, method or manner of attack as would deprive the victim of an opportunity for
self-defense or retaliation.51
In the case at bar, although the prosecution's principal witness testified that he actually
witnessed the stabbing, there was no statement to describe the circumstances
surrounding the incident. Neither did the prosecution show how the attack was
commenced.
We have ruled in a litany of cases that treachery cannot be presumed; it must be proved
by clear and convincing evidence or as conclusively as the killing itself. 52 The same
degree of proof to dispel any reasonable doubt is required before treachery may be
considered as an aggravating or a qualifying circumstance.53 Hence, where the
circumstances surrounding either the manner of the attack or how the aggression was
commenced has not been proven, as in this case, the appellant should be given the
benefit of the doubt, and the crime should be considered only as homicide defined and
penalized under Article 249 of the Revised Penal Code.
This provision prescribes the penalty of reclusion temporal for homicide. There being no
mitigating or aggravating circumstance that can properly be appreciated, the penalty
shall be imposed in its medium period.
As regards appellant's pecuniary liabilities, we affirm the award of P50,000 as civil
indemnity ex delicto, consistent with current jurisprudence.54 This award needs no proof
other than the commission of the crime. Further, proven moral damages amounting to
P40,000 are reasonable, considering the grief suffered by the victim's mother, a 75year-old widow, at the sudden loss of her son who was her sole companion at home and
the one supporting her. Moral damages which include mental anguish, serious
anxiety and wounded feelings may be recovered in criminal offenses resulting in the
victim's death.55 Likewise, we affirm the award of P65,000 stipulated56 actual damages.
WHEREFORE, the appeal is PARTLY GRANTED. Appellant Rolando Mendoza is found guilty
beyond reasonable doubt of HOMICIDE and is sentenced to an indeterminate penalty of
nine (9) years of prision mayor as minimum to fifteen (15) years of reclusion
temporal as maximum. He is likewise ordered to pay the legal heirs of Prudencio Valdoz
P50,000 as indemnity ex delicto; Mely Cruz, P65,000 as actual damages; and Mrs.
Beatriz Valdoz, moral damages in the amount of P40,000. No pronouncement as to
costs.
SO ORDERED.

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