G.R. No.

L-47147 July 3, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SENEN OLA, defendant-appellant.

CORTES, J.:

On automatic review by this Court is this criminal case involving the

crime of Attempted Robbery with Homicide and Unintentional
Abortion wherein the death penalty was imposed by the trial court
prior to the effectivity of the 1987 Constitution.

The accused-appellant Senen Ola, was charged before the then

Court of First Instance of Marinduque as the principal in the crime of
Attempted Robbery with Homicide and Unintentional Abortion
punishable under the Revised Penal Code. His co-accused, Jose
Bustamante and Rustico Matimtim were charged only as
accomplices. The amended information filed against Ola and his co-
accused reads, in part:

That on or about November 30, 1970, in the evening thereof, in the

barrio of Magapua, municipality of Mogpog, province of Marinduque,
Philippines and within the jurisdiction of this Honorable Court, the
said accused did, then and there, willfully, unlawfully and feloniously,
with intent of gain, commence the commission of the crime of
Robbery directly by overt acts in the following manner, to wit: that
while Jose Bustamante and Rustico Matimtim, acting as accomplices,
are stationed behind the house of one Lolita Muhi acting as guards or
lookouts, the principal, Senen Ola, climb up and enter the house of
said Lolita Muhi with the intention of committing the crime of robbery
but was unable to perform all the acts which would produce the crime
of robbery as a consequence by reason of the fact that Lolita Muhi
was awake and attempted to ask for help as a consequence of which,
the accused Senen Ola, taking advantage of his superior strength
and with a bladed weapon, assault and stab Lolita Muhi who is in the
family way, inflicting upon her the following injuries, to wit:

xxx xxx xxx

which caused her death and the abortion of the foetus in her womb.

xxx xxx xxx

(Rollo, pp. 7-8)

Upon arraignment. Ola pleaded not guilty. The other accused,

Bustamante and Matimtim, pleaded guilty to the charge. The case
went into trial with respect to Ola, while judgment was reserved as to
his co-accused.

In the course of the presentation of the evidence for the prosecution,

specifically, after the cross-examination of the accused Bustamante,
the accused Matimtim, through counsel, manifested his desire to
withdraw his initial plea of guilt and to enter a plea of not guilty. The
trial court allowed the change of plea "in the interest of justice."
(Rollo, p. 12) Trial then proceeded with respect to Ola and Matimtim
who were thereafter convicted as principal and accomplice,
respectively.

After trial, the lower court convicted the accused Ola as principal in
the crime of Attempted Robbery with Homicide and Unintentional
Abortion. The death penalty was imposed by the trial court upon a
finding that the homicide committed on the occasion of the attempted
robbery was murder, (See Article 297, Revised Penal Code) qualified
by abuse of superior strength and complexed with the unintentional
abortion of the victim's fetus, and therefore deserving of a higher
penalty than the prescribed penalty of reclusion temporal in its
maximum period to reclusion perpetua (Rollo, pp. 31-32). The
accomplice Matimtim, whose participation was unattended by any
aggravating or mitigating circumstance, was sentenced to eight (8)
years and one (1) day of prision mayor as minimum penalty, to
fourteen (14) years and one (1) day of reclusion temporal as
maximum penalty (Rollo, pp. 40-41). The other accomplice
Bustamante was meted out the penalty of four (4) years and one (1)
month of prision correccional as minimum to nine (9) years and one
day of prision mayor as because of two mitigating circumstances in
his favor (Rollo, pp. 41-42). The two convicted accomplices did not
appeal, hence judgment as to them became final and they can no
longer be affected by the outcome of this review (See U.S. v.
Dagalea, 4 Phil. 398 (1905).
As in all cases in which the death penalty had been imposed, the
complete record of this case as well as the transcript of stenographic
notes and the folder of exhibits was elevated to this Court in
accordance with Rule 122, Section 8 of the Rules of Court for
automatic review (See 2nd par. of Article 47, Revised Penal Code, as
amended by Sec. 9 of the Judiciary Act of 1948 [R.A. No. 296]).
While this case was under review, all death penalties already
imposed were automatically reduced to reclusion perpetua pursuant
to Article III, Sec. 19 (1) of the 1987 Constitution which states:

Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment inflicted. Neither shall death penalty be
imposed, unless for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion perpetua

By virtue of the foregoing constitutional provision, those accused

whose death penalties had been previously affirmed by this Court
shall be spared, and instead, they shall serve their respective life
sentences. On the other hand, those whose death penalties are still
under review which includes the accused-appellant Ola, can only be
sentenced to the maximum penalty of reclusion perpetua even if We
affirm their respective convictions.

The accused-appellant in this case assails the judgment of

conviction, first, upon the ground that the testimony of Jose
Bustamante comes from a polluted source, and therefore, must be
subjected to careful scrutiny (Brief for the Appellant, p. 22). Accused-
appellant likewise points out that the accomplice Matimtim repudiated
his extrajudicial confession (Exhibit "G") and declared that he was
forced to sign the same (Id.) Finally, the defense argues that other
than one testimony of Bustamante, there is no evidence positively
Identifying the accused-appellant as the author of the crime charged,
hence his defense of alibi should have been given due significance.
(Id., p. 29).

The paramount concern of this Court in reviewing a judgment of

conviction is to see to it that no person is made answerable for a
crime without proof of his guilt beyond reasonable doubt. This is
clearly set forth in U.S. v. Laguna, 17 Phil. 532, 540 (1910), thus:
The requirement that the Supreme Court pass upon a case in which
capital punishment has been imposed by the sentence of the trial
court is one having for its object simply and solely the protection of
the accused. Having received the highest penalty which the law
imposes, he is entitled under that law to have the sentence and all
the facts and circumstances upon which it is founded placed before
the highest tribunal of the land to the end that its justice and legality
may be clearly and conclusively determined. Such procedure is
merciful. It gives a second chance for life. * * *

Moreover, the Bill of Rights guarantees that any person accused of a

criminal offense is presumed innocent until the contrary is proved
(Art. III, Sec. 14(2). Constitution). The quantum of evidence required
by law to overcome this constitutional presumption, and to justify any
criminal conviction is proof beyond reasonable doubt (Rule 133, Sec.
2). This is not to say that there should be absolute certainty in every
criminal conviction. The law only requires the prosecution to adduce
"that degree of proof which produces conviction in an unprejudiced
mind" (Rule 133, Sec. 2 and Rule 131, Sec. 2).

All the evidence considered by the trial court in convicting the

appellant must therefore withstand close examination by this Court.
More so when, as in this case, the conviction under review stands
precariously upon the uncorroborated testimony of a confessed
accomplice.

After a careful study of the record, the transcript of stenographic

notes and the folder of exhibits of this case. We find that the guilt of
the defendant-appellant has not been proven beyond reasonable
doubt.1avvphi1

1. The testimony of the confessed accomplice Bustamante lacks the

credibility and details necessary to establish the guilt of the appellant
beyond reasonable doubt. In convicting the appellant, the trial court
relied heavily upon the testimony of the confessed accomplice
Bustamante, which testimony was supposedly corroborated by the
extrajudicial confession of the other accomplice Matimtim (Exhibit
"G") and some supporting evidence.

As We delved into the voluminous transcript of the testimonies given

by the various witnesses, We found Bustamante's testimony
unsettling in its vagueness and incredibility. While stating outright that
it was Ola who climbed up the wall of the victim's house on the night
that the crime was committed (TSN, June 1, 1973, pp. 33-35), he was
suspiciously vague in describing the manner in which Ola was able to
do this. Portions of his testimony on this aspect follow:

xxx xxx xxx

(Cross-examination)

Q When according to you Senen Ola stepped on the unfinished

hollow blocks fence, the next thing that he did was to climb up the
house of Lolita Muhi. Please tell the court exactly what he did when
you said he climbed up. Did he climb up the way a person climbs a
coconut tree, and if not, please explain to the court.

A He stepped on the hollow blocks fence and once already close to

the wall of the house and about to climb I did not see him any more
(sic) because I was looking to (sic) the road, sir.

xxx xxx xxx

(TSN, June 1, 1973, p. 46)

xxx xxx xxx

Q Until Senen Ola, as you claim, was able to enter the house you
remained standing at the place near the unfinished hollow blocks
fence wall where according to you, you, Senen and Rustico Matimtim
stayed upon arrival in that premises, is that correct?

A Yes, sir.

Q And yet you could not tell the court how Senen Ola climbed up the
wall or entered that wall thru that alleged hole, is that correct?

A He just passed thru the hole, sir. (Basta sumuot sa butas)

Q When you said that Senen Ola passed thru the hole or "sumuot sa
butas," do you mean to tell the court that Senen Ola entered thru that
hole with his head first?
A Of course, the head should go first. (Siempre po ang ulo ang
mauuna)

Q Did you see Senen Ola's two legs passing thru the hole?

A I just noticed that he was not outside any more (sic), sir.

xxx xxx xxx

(TSN, June 1, 1973, pp. 48-49)

With the foregoing testimony, Bustamante would like the trial court to
believe that Ola climbed up the wall and passed through a hole
therein unassisted, yet he could not describe how this was done
because according to him, he was looking in another direction. But
this is incredible on two counts. In the first place, as a lookout,
Bustamante must have been anxious to see that whoever was
climbing into the victim's house would be able to get inside
undetected, because the slightest miscalculation on the part of the
latter could have spelled doom for all of them. Instead, he looked
away at the exact moment when Ola allegedly entered the house. In
the second place, the testimony of the police investigator, Acting
Chief of Police Celso Linayao, on the size of the hole and its relative
distances from the ground and from the hollow-block fence referred to
by Bustamante, strikes a discordant note in the latter's testimony. The
pertinent portion of the police investigator's testimony is quoted
below:

xxx xxx xxx

(Direct examination)

Q How high above the ground is the floor of the kitchen?

A I think it is about waste (sic) high.

Q And now high above the floor of the kitchen is the hole?

A If one has to stand on the stove, sir, his foot could reach the hole,
sir.

Q But how high above the floor in the kitchen is the hole?
A Maybe up to my neck, sir.

xxx xxx xxx

Q Could a person who would stand on this hollow blocks marked

Exh. 3-a enter that hole thru?

A No, sir.

Q Why?

A The hollow blocks are lower sir, and, the distance from the wall is
far, sir.

Q How far is the hole from the hollow blocks?

A About two yards, sir.

xxx xxx xxx

(TSN, October 29, 1975, pp. 11-12)

Taking the two testimonies side by side, We are disturbed by the

emerging incongruity in Bustamante's version of Ola's alleged
participation in the crime charged. Even casting aside the size of the
hole in the wall, which was not given in more precise terms, and the
weakness of said wall made of "Basag na kawayan" (TSN, October
31, 1972, p. 8 [Testimony of Diosdado Muhi] it seems to Us rather
difficult for anyone to pass through a hole overhead from a lower level
(the hollowblock fence) lying at a distance of about two (2) yards
(Linayao's testimony, supra). It requires nothing less than an acrobat
to do this, unassisted. We find Bustamante's testimony lacking in
credibility and details. Stripped down to its bare essentials, it cannot
prop up the prosecution's theory on the manner of the commission of
the crime, much less on the Identity of the offender.

The trial court, however, ignored the evidence of the police

investigator, for no apparent reason. The lower court's decision does
not go beyond expressing doubt on the integrity of the police
investigator. It offers no explanation for having given more weight to
the testimony of a confessed accomplice than to that of a police
officer who investigated the case. This Court generally desists from
disturbing the conclusions of the trial court on the credibility of
witnesses, but WE may take exception in order to keep faith with the
immutable principle that every criminal conviction must be supported
by proof beyond reasonable doubt. We must, therefore, be satisfied
that all relevant and competent evidence adduced by the State and
by the defense are considered, and that, if any evidence is
disregarded by reason of the incredibility of a witness, such fact must
appear in the record. In the case at bar, whatever reasons the lower
court might have had in discrediting the evidence of the police
investigator, the latter should have served, at the very least, to
countercheck the accomplice's testimony, which happens to be the
only direct evidence pointing to the appellant as the perpetrator of the
crime charged.

2. The extrajudicial statements of the accused Matimtim are

inadmissible against the appellant Ola for being hearsay. To buttress
the testimony of Bustamante, the trial court deemed as corroborative
evidence, the extrajudicial statements of the other accomplice
Rustico Matimtim, among others. The proper test in determining the
corroboration of a testimony is to examine the other evidence with a
view to ascertain if these tend to connect the accused to the offense
(People v. Alto, L-18660 and L-18661, November 29, 1968, 26 SCRA
342, 365, citing People v. Bagos and Bagos, L-6808 and L-6809,
October 29, 1954). With respect to the extrajudicial statements of
Matimtim (contained in Exhibit "G") implicating Ola, the trial court
should have been guided by the settled rule that:

* * * (e)xtrajudicial statements of an accused implicating a co-accused

may not be utilized against the latter unless repeated in open court.
(People v. Fraga, 109 Phil. 241, 248 [1960] citing People v. Izon, 104
Phil. 690 [1958]; People v. Gomez, 101 Phil. 1056 [1957]; People v.
Serrano, 105 Phil. 531 [1959].

In the instant case, the appellant never had an opportunity to cross-

examine Matimtim on the latter's incriminating statements. Not only
were said statements not repeated in court, but they were repudiated
by Matimtim during his testimony wherein he claimed that he was
prevailed upon by Bustamante to implicate Ola (TSN, April 2, 1975,
pp. 8-9). The latter expressly denied the facts narrated in his
confession which incriminate Ola (TSN, January 24, 1975, pp. 7-13).
Since the appellant in this case never had the opportunity to cross-
examine Matimtim on the latter's extrajudicial statements, the same
are hearsay as against said appellant (People v. Narciso, G.R. No. L-
24484, May 28, 1968, 23 SCRA 844, 852-853; People v. Royo, G.R.
No. 52038, May 31, 1982, 114 SCRA 310, 311). This particular
evidence having been objected to by the appellant's counsel upon its
formal offer Original Record, p. 147), and even repudiated by the
witness (during his testimony, the same are inadmissible as evidence
of appellant's guilt. Neither can these be corroborative of
Bustamante's incriminating testimony against the appellant Ola.

This is not one of those instances when the extrajudicial statements

of a co-accused might be taken into consideration in judging the
credibility of the testimony of an accomplice where certain conditions
concur, such as: a) the statements are made by several accused; b)
the same are in all material respects Identical; and c) there could
have been no collusion among the co-accused in making said
statements (People v. Badilla, 48 Phil. 718, 725-726 [1926]). These
conditions do not obtain in the instant case, and therefore, said
evidence cannot be considered even in the appreciation of
Bustamante's testimony.

3. The circumstantial evidence considered by the trial court in

convicting the appellant Ola do not prove anything from which We
could infer his participation in the crime charged. In addition to the
extrajudicial statements of Matimtim, the trial court considered the
following circumstantial evidence in convicting the appellant Ola, to
wit: a footprint found near the stove in the kitchen of the victim's
house, a hole in the wall of said kitchen, the linear cuts or incisions
found on Ola's index finger and mandible, and what the lower court
considered as the "dying gesture" of the victim, allegedly pointing to
the general direction of " Ilaya, " where both the accused Bustamante
and Ola resided.

We do not agree with the trial court's conclusion that the aforecited
evidence are corroborative of Bustamante's incriminatory testimony
against the appellant. Circumstantial evidence may be characterized
as that evidence which proves a fact or series of facts from which the
facts in issue may be established by inference. (People vs. Modesto,
G.R. No. L-25484, September 21, 1968, 25 SCRA 36, 40) This Court
cannot, by any stretch of imagination, infer from said evidence, the
Identity of the victim's assailant nor the actual participation of the
appellant Ola in the crime charged.

The footprint allegedly found on the "abuhan" (near the stove)

immediately after the discovery of the crime was never measured nor
Identified as Ola's, or as of the same foot size as Ola's. The height
and weight of Ola, as well as those of his co-naccused, were not
taken into account in judging the probability that any of them had
indeed passed through the hole in the wall made of light material
("basag na kawayan") without defying the law of gravity. Significantly,
the manner in which the culprit could have gained entry into the
house of the victim was not satisfactorily explained by the
prosecution.

And then, the wounds on the appellant Ola's index finger and on his
mandible, which were described in the medical certificate issued by
the resident physician of the Marinduque Provincial Hospital in this
manner:

xxx xxx xxx

1. Linear cut wound, left index finger medial aspect, middle portion 2
cm. in length

2. Linear abrasion, right mandible, 1 " in length traversing the course

of the mandible

Should there be no complication the above wound and injury would

require 6-7 days treatment.

xxx xxx xxx

(Exh. "L")

A review of the evidence has revealed that the prosecution failed to

connect the wounds to the commission of the crime, The testimony of
the physician, Dr. Efren J. Labay, as well as the aforecited medical
certificate (Exh. "L"), merely establish the size and location of said
wounds (TSN, March 29, 1977, pp. 12-13) found on the person of the
appellant as of December 2, 1970 (Id., pp. 9-10), or two after the
commission of the crime.
However, the trial court considered the existence of said wounds as
corroborative of Bustamante's narration that Ola forcibly passed
through the hole in the kitchen wall of the victim's house (Rollo, p.
28). This inference is far-fetched. The wounds are too few and too
slight to have been caused by the rough edges of the hole in the wall
made of crushed bamboo, especially, if, as surmised, the appellant
had "forcibly passed through" it. It appears that the trial court made
much out of the physician's testimony that the wounds might have
been caused by the sharp edge of a split bamboo (Rollo, p. 28). But
the witness statement on this point was not conclusive, thus:

xxx xxx xxx

(Direct examination by the prosecution)

Q Considering the location, the nature and crack of this linear cut
wound on the left forefinger, what could have caused the same?

A Any sharp instrument or object sir.

Q Could it have been caused by the sharp edge of a split bamboo?

A Yes, possible.

xxx xxx xxx

(TSN, March 29, 1977, p. 13)

(Cross-examination)

Q You said it must have been caused . . . You said it could have been
caused by a sharp instrument. Could it have been caused by a bolo?

A It is possible.

Q Could it have been caused by a knife?

A Possible.

xxx xxx xxx

(Id, pp. 15-16)

Nowhere in the aforequoted testimony can We discern anything
definite as to the cause of the wounds in question, which, by
inference, would connect Ola to the crime.

Finally, We find the gesture of the dying woman too vague to be

given much probative value in determining the culpability of the
appellant. The disadvantage presented by this kind of evidence is
that, unlike an oral or a written declaration, a simple gesture of the
hand unaccompanied by words is open to various interpretations by
the witness who testifies to its existence. Thus, the evidence comes
to the courts couched in the witness' second hand perception and
possibly, imbued with his personal meanings and biases. This is what
makes hearsay evidence objectionable. The second hand evidence is
placed before the court without the benefit of cross-examination by
the party against whom it is brought, nor of any other means for
assessing the competence and credibility of its source.

As a matter of exception to the Hearsay Rule, statements made by

the victim at the point of death which qualify as dying declarations
may be admitted by the courts (Rule 30, Sec. 31). It is not clear from
the decision under review whether the dying gesture was admitted as
a dying declaration. Without ruling on the admissibility of said
evidence as a dying declaration, We find that such an equivocal act
of pointing with the hand does not in anyway corroborate
Bustamante's testimony on the Identity of Ola as the victim's
assailant. Neither does it prove any other fact from which his
participation in the crime may be inferred. Whether this piece of
evidence exists in the record as a dying declaration or hearsay
evidence not objected to, the same shall be treated like any other
testimonial evidence. Even as a dying declaration, it is not more
sacred than the testimony of a witness presented in court (People v.
Aniel, G.R. No. L-34416, February 21, 1980, 96 SCRA 199, 211).

In the case before Us, the witness Diosdado Muhi testified that after
he asked the dying victim for the Identity of her assailant, she
responded by pointing to the direction which the witness referred to
as Ilaya But that is only one of a number of ways to interpret said
gesture. Any direction pointed out from inside an enclosure may refer
to a place as near as the next-door neighbor's house, or to
somewhere as far as the next barrio, for the obvious reason that both
may lie along the general direction indicated. And even if the witness'
interpretation is adopted, it does not incriminate Ola alone. All
residents of that area lying in the direction of Ilaya are thus, equally
suspect.

It becomes apparent that the reliance by the trial court upon the
circumstantial evidence cited in its decision as corroborative of
Bustamante's testimony was misplaced. This leaves Bustamante's
testimony standing alone as basis for Ola's conviction.

4. Bustamante's own testimony incriminates himself more than it

does the accused-appellant Ola. Time and again, courts have been
enjoined to exercise the greatest caution and circumspection in
appreciating the uncorroborated testimony of an accomplice (People
v. Alto, L-18660 & L-18661, November 29, 1968, 26 SCRA 342, 348-
349) Coming as it does from one who is himself not innocent, and
without any other evidence to lend it credence, it must be scrutinized
before it can, by itself, support any judgment of conviction. After a
painstaking review of the transcript, We find that the testimony of
Bustamante was able to prove, first of all, that he (Bustamante) was
at the scene of the crime in Barrio Magapua, Mogpog, Marinduque on
that specific hour that the victim Lolita Muhi could have been killed by
an unidentified assailant (TSN, April 6, 1973, pp. 29-36), thus giving
him the "opportunity" to commit the crime himself. By his own
admission, his presence in that place was brought about by an
intention to rob the victim (TSN, April 6, 1973, p. 27), which supplies
the I motive" for staging the attempted robbery. Finally, while being in
the immediate vicinity of the victim's house on the night of the
attempted robbery and the stabbing, he admitted that he was armed
with a double-bladed "balisong" Id, p. 33) which furnishes him with
the "means" of committing the crime.

Considering that the foregoing facts culled from Bustamante's

testimony reveal the existence of opportunity, motive and means for
said witness to have actually committed the very acts he imputed to
the appellant Ola, the inescapable conclusion is that, the evidence
adduced incriminate said witness more than it does Ola. Reasonable
doubt therefore militates against Ola's conviction.

5. There being doubt on the Identity of the appellant Ola as the

principal in the crime charged, the trial court should have acquitted
him, notwithstanding the weakness of his defense. The appellant
testified that on the night that the crime was committed on November
30, 1970, he was in his house in Barrio Malusak, Mogpog,
Marinduque which was more or less two and one-half (2 1/2)
kilometers from Barrio Magapua where the victim resided (TSN,
February 9, 1977, p. 22). According to him, he had been drinking with
three companions, his brother Bienvenido, Nicanor Jamig and Eladio
Dimayuga from 6:00 to 10:20 on that fateful night (TSN, February 8,
1977, pp. 8-10). Ola's alibi was corroborated by the testimony of his
wife, Pilar Ola (TSN, December 15, 1976, p. 11), and that of one of
his drinking companions, Eladio Dimayuga, who happened to be in
Barrio Malusak to buy a carabao (TSN, February 7, 1977, pp. 4-7).

Alibi is generally a weak defense since it is easy to concoct and

difficult to disprove (People v. Basuel, L-28215, October 13, 1972. 47
SCRA 207, 222). However, when the Identification of the accused as
the author of the crime charged is weak and unreliable, alibi assumes
importance. (See People v. Torio, L-48731, December 23, 1983, 126
SCRA 265, citing People v. Bulawin, L-30069, September 30, 1969,
29 SCRA 710, 721). Thus, in the case before Us, where the proof of
the appellant's participation in the crime charged consists only in the
uncorroborated testimony of an accomplice, and considering that
such testimony lacks details and credibility, the defense of alibi,
should have been given more weight. And even if it were true that
such defense was not satisfactorily proven, this fact alone does not
justify the judgment of conviction now under review. The burden of
proving the offense charged and the Identity of the offender rests
upon the prosecution (Rule 131, Sec. 2). Failing in its task to prove
that the appellant is the author of the crime, the prosecution cannot
rely upon the weakness of the defense in order to secure a conviction
(People v. Formentera, L-30892, June 29, 1984, 130 SCRA 114, 132;
People v. Somontao, L-45366-68, March 27, 1984, 128 SCRA 415,
426; People v. Basuel, 47 SCRA 222; 223).

Given the weak evidence presented by the prosecution on the

participation of the appellant Senen Ola in the crime of Attempted
Robbery with Homicide and Unintentional Abortion, reasonable doubt
sets in. The prosecution's failure to overcome the constitutional
presumption of innocence entitles the appellant Ola to an
ACQUITTAL.

WHEREFORE, We REVERSE the judgment of conviction meted out

by the trial court. Senen Ola is ACQUITTED of the crime charged and
this Court orders his immediate release from detention.
G.R. No. 117732 October 10, 1995

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JESUS

SALILING y CHICA, Accused-Appellant.

MELO, J.:

Jesus Saliling was charged with murder in an Information reading:

That on or about the 10th day of March 1994 in Kaloocan City, M.M.
and within the jurisdiction of this Honorable Court, the above-named
accused, with deliberate intent to kill, treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously
stab one GERALD CANAPI Y PAGULAYAN, hitting the latter on his
left upper portion of his chest and on his right elbow, thereby inflicting
serious physical injuries upon the said victim which caused his
instantaneous death.chanroblesvirtualawlibrarychanrobles virtual law
library

(p. 1, Rollo.)

After trial following a plea of not guilty, the trial court found accused
guilty as charged in a decision dated October 25, 1994, and imposed
on him the extreme penalty of death, aside from ordering him to pay
civil indemnification, moral, and actual and compensatory damages.
Disposed thus the trial court:

WHEREFORE, in view of the foregoing considerations, the Court

finds accused, JESUS SALILING Y CHICA GUILTY beyond
reasonable doubt of the crime of MURDER and sentences him to
suffer the maximum penalty of DEATH; to pay the sum of ONE
HUNDRED THOUSAND (P100,000.00) PESOS as actual and
compensatory damages; to indemnify the heirs of the victim the sum
of FIFTY THOUSAND (P50,000.00) PESOS and another sum of
FIFTY THOUSAND (P50,000.00) PESOS as moral damages. With
costs.chanroblesvirtualawlibrarychanrobles virtual law library

(p. 16, Rollo.)

Automatic as the review of said decision is as mandated by law, still,

a notice of appeal was filed, and we now have accused-appellant
maintaining that neither premeditation nor treachery was proved by
the prosecution.chanroblesvirtualawlibrarychanrobles virtual law
library

The background facts, as established by the evidence, were

synthesized in the brief filed by Solicitor General Raul I. Goco,
Assistant Solicitor General Antonio L. Villamor, and Solicitor Eviess
J.S.A. Acorda in this wise:

At about 4:30 a.m. of March 10, 1994, Arsenio Pascua was

conversing with Gerard Canapi in front of Ever Disco Pub located on
M.H. del Pilar, 3rd Avenue, Kalookan City (tsn., p. 2, Pascua, October
11, 1994). They were waiting for their companions who were coming
from nearby International Cabaret
(ibid.).chanroblesvirtualawlibrarychanrobles virtual law library

Suddenly, appellant emerged behind both Pascua and Canapi and

then sidled up to Canapi. Without any warning, he stabbed Canapi at
least twice with a homemade knife, and then quickly ran away (tsn.,
p. 3, 11, Pascua, October 11, 1994). When Pascua saw what
happened, he shouted at his companions who were about ten to
fifteen meters away and told them to pursue appellant
(ibid.).chanroblesvirtualawlibrarychanrobles virtual law library

Pascua hurriedly brought Canapi in a tricycle to the MCU Hospital for

treatment but the latter was pronounced dead on arrival (tsn., p. 4,
Pascua, October 11, 1994).chanroblesvirtualawlibrarychanrobles
virtual law library

Appellant was thereafter arrested by operatives of the 6th Avenue

Detachment of the Philippine National police and turned over to PO3
Feliciano Almojuela for investigation (tsn., p. 1, 2, Almojuela, October
12, 1994). On March 18, 1994, he was charged with Murder before
the Regional Trial Court, National Capital Judicial Region, Kalookan
City.chanroblesvirtualawlibrarychanrobles virtual law library

(pp. 3-4, Appellee's Brief; pp. 55-56, Rollo.)

In the present appeal, accused-appellant has abandoned the defense

of denial and alibi he put up during the trial below and now admits the
fact that he indeed stabbed Gerald Canapi. However, he contends
that the killing of Canapi was not attended by treachery. He argues
that judging by the location of the wounds inflicted on the victim,
which were at the left side of the chest and at the left elbow of the
victim, the attack was frontal and thus the "deceased must have been
forewarned by the impending danger to his life", which circumstance,
accused-appellant implies, must have afforded the victim the
opportunity of protecting himself. The stark facts of the attack; as
strikingly depicted by Arsenio Pascua, greatly militate against
accused-appellant's argument. Even a frontal attack can be
treacherous when it is sudden and unexpected and the victim was
unarmed (People vs. Abapo, 239 SCRA 469
[1994]).chanroblesvirtualawlibrarychanrobles virtual law library

In flashback, at around 4 o'clock in the morning of March 10, 1994,

we see Arsenio Pascua and Gerald Canapi waiting for a ride while
conversing in front of the Ever Disco Pub located at M.H. del Pilar,
3rd Avenue, Caloocan City. They were likewise waiting for their
companions who were at the nearby International Cabaret. While
thus occupied, they were approached from behind by accused-
appellant who then sidled up to Canapi and suddenly without warning
stabbed Canapi twice with a knife, first at the left side of the chest
and then at the left elbow. Accused-appellant then immediately
thereafter scampered away. The stabbing happened in a split second
(pp. 2-11, tsn., October 11, 1994). The foregoing circumstances
manifestly disclose the treacherous nature of the attack upon the
victim by accused-appellant.chanroblesvirtualawlibrarychanrobles
virtual law library

Verily, there is treachery when the offender commits any of the

crimes against the person, employing means, methods or forms in
the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make (2nd par., No. 16, Article 14, Revised
Penal Code; People vs. Parangan, 231 SCRA 682 [1994]; People vs.
Pajares, 232 SCRA 63 [1994]). In the case under review, the
suddenness of the attack, without any provocation on the part of the
victim, who was innocently conversing with Pascua and was thus
totally unaware of the impending attack upon him, and the fact that
the victim was unarmed demonstrate the treacherous nature of the
attack.

There is treachery when the attack on the victim was sudden and
unexpected and from behind and without warning, with the victim's
back turned towards his assailant, or when the attack was so sudden
and unexpected that the victim was unable to defend himself, thus
ensuring the execution of the criminal act without risk to the
assailant.chanroblesvirtualawlibrarychanrobles virtual law library

(People vs. Boniao, 217 SCRA 653, 671 [1993]).

The conclusion, therefore, is unavoidable that the attack upon the

victim was perpetrated with alevosia, thus, qualifying the killing to
murder.chanroblesvirtualawlibrarychanrobles virtual law library

We, however, are in agreement with accused-appellant in his

submission that there is insufficient evidence to prove the existence
of evident premeditation.chanroblesvirtualawlibrarychanrobles virtual
law library

The following requisites must concur before evident premeditation

may be appreciated: (a) the time when the accused determined to
commit the crime; (b) an act manifestly indicating that the accused
had clung to his determination; and (c) sufficient lapse of time
between such determination and execution to allow him to reflect
upon the consequences his act (People vs. Rodriguez, 193 SCRA
231 [1991]; People vs. Boniao, 217 SCRA 653 [1993]; People vs.
Estrella, 221 SCRA 543 [1993]; People vs. Rivera, 221 SCRA 647
[1993]; People vs. Cayetano, 223 SCRA 770 [1993]). The
prosecution omitted or failed to present any evidence to show (a) the
time when accused-appellant made the determination to commit the
crime, (b) any act to indicate that he persisted in his determination, or
(c) sufficient lapse of time between the determination and
execution.chanroblesvirtualawlibrarychanrobles virtual law library

We thus find that the killing although qualified by treachery was not
attended by evident premeditation, or any other aggravating
circumstance. Neither was there any mitigation thereof. In
consequence, the penalty must be reduced to the indivisible penalty
of reclusion perpetua in line with People vs. Lucas (240 SCRA 66
[1995]) where we had occasion to hold through Justice Davide:

Verily, if reclusion perpetua was reclassified as a divisible penalty,

then Article 63 of the Revised Penal Code would lose its reason and
basis for existence. To illustrate, the first paragraph of Section 20 of
the amended R.A. No. 6425 provides for the penalty of reclusion
perpetua to death whenever the dangerous drugs involved are of any
of the quantities stated therein. If Article 63 of the Code were no
longer applicable because reclusion perpetua is supposed to be a
divisible penalty, then there would be no statutory rules for
determining when either reclusion perpetua or death should be the
imposable penalty. In fine, there would be no occasion for imposing
reclusion perpetua as the penalty in drug cases, regardless of the
attendant modifying
circumstances.chanroblesvirtualawlibrarychanrobles virtual law library

This problem revolving around the non-applicability of the rules in

Article 63 assumes serious proportions since it does not involve only
drug cases, as aforesaid. Under the amendatory sections of R.A. No.
7659, the penalty of reclusion perpetua to death is also imposed on
treason by a Filipino (Section 2), qualified piracy (Section 3), parricide
(Section 5), murder (Section 6), kidnapping and serious illegal
detention (Section 8), robbery with homicide (Section 9), destructive
arson (Section 10), rape committed under certain circumstances
(Section 11), and plunder (Section
12).chanroblesvirtualawlibrarychanrobles virtual law library

Now then, if Congress had intended to reclassify reclusion perpetua

as a divisible penalty, then it should have amended Article 63 and
Article 76 of the Revised Penal Code. The latter is the law on what
are considered divisible penalties under the Code and what should be
the duration of the periods thereof. There are, as well, other
provisions of the Revised Penal Code involving reclusion perpetua,
such as Article 41 on the accessory penalties thereof and paragraphs
2 and 3 of Article 61, which have not been touched by a
corresponding amendment.chanroblesvirtualawlibrarychanrobles
virtual law library

What then may be the reason for the amendment fixing the duration
of reclusion perpetua? The deliberations in the Bicameral Conference
Committee and in both Chambers of Congress do not enlighten us on
this, except the cryptic statement of Senator Tolentino adverted to
above on the elimination of the "new penalty" of life imprisonment by
the Bicameral Conference Committee. It may, however, be pointed
out that although the Revised Penal Code did not specify the
maximum of reclusion perpetua, it is apparent that the maximum
period for the service of this penalty shall not exceed forty (40) years.
In People vs. Reyes, this Court, speaking through Mr. Justice Florenz
D. Regalado, stated:chanrobles virtual law library

We hold that there is legal basis, both in law and logic, for
Presidential Decree No. 818 to declare that any penalty exceeding
twenty (20) years, or the maximum duration of reclusion temporal, is
within the range of reclusion
perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

It will be observed that Article 27 of the Code provides for the

minimum and maximum ranges of all the penalties in the Code
(except bond to keep the peace which shall be for such period of time
as the court may determine) from arresto menor to reclusion
temporal, the latter being specifically from twelve years and one day
to twenty years. For reclusion perpetua, however, there is no
specification as to its minimum and maximum range, as the aforesaid
article merely provides that (any person sentenced to any of the
perpetual penalties shall be pardoned after undergoing the penalty for
thirty years, unless such person by reason of his conduct or some
other serious cause shall be considered by the Chief Executive as
unworthy of pardon.chanroblesvirtualawlibrarychanrobles virtual law
library

The other applicable reference to reclusion perpetua is found in

Article 70 of the code which, in laying down the rule on successive
service of sentences where the culprit has to serve more than three
penalties, provides that "the maximum duration of the convict's
sentence shall not be more than three-fold the length of time
corresponding to the most severe of the penalties imposed upon
him," and (i)n applying the provisions of this rule the duration of
perpetual penalties ( pena perpetua ) shall be computed at thirty
years.chanroblesvirtualawlibrarychanrobles virtual law library

The imputed duration of thirty (30) years for reclusion perpetua,

therefore, is only to serve as the basis for determining the convict's
eligibility for pardon or for the application of the three-fold rule in the
service of multiple penalties. Since, however, in all the graduated
scales of penalties in the Code, as set out in Article 25, 70 and 71,
reclusion perpetua is the penalty immediately next higher to reclusion
temporal, it follows by necessary implication that the minimum or
reclusion perpetua is twenty (20) years and one (1) day with a
maximum duration thereafter to last for the rest of the convict's
natural life although, pursuant to Article 70, it appears that the
maximum period for the service of penalties shall not exceed forty
(40) years. It would be legally absurd and violative of the scales of
penalties in the Code to reckon the minimum of reclusion perpetua at
thirty (30) years since there would thereby be a resultant lacuna
whenever the penalty exceeds the maximum twenty (20) years of
reclusion temporal but is less than thirty (30) years.

WHEREFORE, the appealed decision is hereby AFFIRMED in all

respects except for the modification that the penalty of death imposed
by the trial court on accused-appellant is reduced to reclusion
perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OSCAR

MANSUETO, Accused-Appellant.

DECISION

DAVIDE, JR., C.J.:

Jacinto Pepito (hereafter JACINTO) lived at his mothers house in

Liloan, Cebu with his son Jeovani and 17-year-old daughter Cleofe
(hereafter CLEOFE). At around 8:25 p.m. on 26 October 1991,
CLEOFE roused JACINTO from his sleep and informed him that a
man outside the house was calling for him. JACINTO got up and went
down the house. Downstairs, JACINTO saw the man who was
standing outside the gate of the house. Are you Jacinto? the man
asked. Yes, I am Jacinto, JACINTO replied. Without warning, the
man drew a gun and fired one shot at JACINTO.1

The man tried to shoot JACINTO a second time but the gun would
not fire. Summoning whatever strength was left in him, JACINTO
reached out for his assailant. The man, however, hurriedly ran across
the street to where a motorcycle was waiting. He boarded the
motorcycle; he and the driver sped away. At that point, JACINTOs
body lay on the ground lifeless.[2

The Police Medico-Legal Officers Necropsy Report[3 identified

hemorrhage, acute, severe, secondary to gunshot wound, of the
chest as the cause of JACINTOs death. The report states:
Gunshot wounds, ENTRANCE, ovaloid, 0.7 x 0.6 cm., with contuso-
abraded collar widest supero-late-tally by 0.4 cm., edges inverted,
chest, left anterior aspect, 3.0 cm. from the anterior median line and
138.0 cm. above left heel, directed backward, downward and
medially, involving skin and the underlying soft tissues, into thoracic
cavity, perforating the barta, lacerating the lower border of the lower
lobe of the right lung and finally a .38 cal. slug was embedded and
recovered underneath skin, back, thoracic region, right, 5.0 cm. from
the posterior median line and 127.0 cm. above right heel.

The gunman was never brought to court to answer for his dastardly
act. He remained at-large. The driver of the getaway motorcycle was
identified at the investigation conducted by the police to be the
accused-appellant, Oscar Mansueto (hereafter OSCAR). After the
preliminary investigation, the investigating prosecutor filed on 11
November 1992 an Information[4 for Murder with Branch 56 of the
Regional Trial Court of Mandaue City. The Information reads as
follows:

The undersigned accuses OSCAR MANSUETO and JOHN DOE

whose description in the affidavit is as follows: 56 tall, medium built,
dark complexion, with moustache, deep cheek, fierce eyes and
wearing maong jacket and cloth hat with snap in front, of the crime of
Murder, committed as follows:

That on the 26th day of October, 1991 at 8:00 oclock in the evening,
more or less, at Sitio Pagutlan, Barangay of Yati, Municipality of
Liloan, Province of Cebu, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and helping one another, with treachery and evident
premeditation, with intent to kill, armed with a revolver, and with the
use of motorcycle to ensure escape, willfully, unlawfully and
feloniously, unexpectedly shot one Jacinto Pepito hitting the latter on
his chest and afterwards, when enfeebled and unable to defend
himself, again shoot him, but missed, and fatal gunshot wound of the
victim causing his direct and immediate death.

CONTRARY TO LAW.

The case was docketed as Criminal Case No. DU-3235.

Upon arraignment OSCAR pleaded not guilty. Trial ensued.

The States principal witness, CLEOFE, testified on the circumstances

leading to the death of her father as already narrated.[5 When asked
whether she had a good look (at) the man who was driving the
motorcycle, CLEOFE said that she is familiar with his face because
(she) often see(s) him. She further explained that she had a good
view of said driver for about five seconds as he and the gunman sped
away. Besides, the place where the driver waited for the gunman was
illuminated by the light coming from a nearby vulcanizing shop owned
by one Arnold Hernandez. She then identified the driver of the
motorcycle as OSCAR, whom she claimed was the paramour of her
mother, Moisesa Pepito.6

Another witness for the prosecution, Jose Pepito, a resident of Pag-

utlan, Yati, Liloan, Cebu, testified that while he was at Myrnas store at
Barangay Pitogo, Consolacion, Cebu at around 7:30 p.m. on the night
in question, two persons on board a motorcycle stopped by the store.
The two alighted and had some beer. Later, they left in the general
direction of Liloan, Cebu. On his way home, Jose again saw the
motorcycle along the roadside in Pag-utlan, near the vulcanizing shop
of Arnold Hernandez. He then heard a shot and saw a man run
towards the motorcycle to board it. He clearly saw the man and the
driver of the motorcycle as they sped away because of the light from
the electric post; moreover, he had seen them earlier at Myrnas store.
He pointed to OSCAR as the motorcycle driver.[7

The prosecution also presented Dr. Jesus P. Cerna, the medico-legal

officer, who identified and authenticated the Necropsy Report[8 and
the death certificate of JACINTO.[9

The defense interposed denial and alibi. Aside from OSCAR, the
other witnesses presented by the defense were Patrolmen Absalom
Andrino and Allan Tan of the Police Station of San Remegio, Cebu;
Patrolman Arcelo Necostrato of the Police Station of Liloan, Cebu;
Moisesa Pepito; Judith Alesna; and Jeovani Pepito.

OSCAR disavowed participation in the killing of Jacinto. On the date

and time in question, OSCAR claimed that he was at the poblacion of
San Remegio, Cebu, which was about 90 kilometers away from the
locus criminis - Liloan, Cebu. OSCARs activities on the evening of 26
October 1991 started at 6:00 p.m. when he and Moisesa proceeded
towards Alesnas carenderia. Along the way, they saw Patrolman Tan
sitting at the police outpost nearby. They had supper at the
carinderia. At 7:30 p.m., while Alesna and her husband left for
church, OSCAR and Moisesa went to the second floor with Patrolman
Andrino, who was renting a space thereat, to view a Betamax film.
Later, Alesna and her husband arrived and joined the group. OSCAR
and Moisesa left at around 11:00 p.m. Two days later or on 28
October 1991, his brother informed OSCAR that he was a suspect in
the killing of JACINTO. On 31 October 1991, OSCAR went to the
Liloan police station to attest to his presence at San Remegio, Cebu
on the night of Jacintos murder.[10

On cross-examination, OSCAR admitted that: the sidecar of his

tricycle is detachable from the motorcycle; he was unsure on how far
San Remegio is from Liloan; on the night in question, he began
watching Betamax between 7:30 and 8:00 p.m.; he could not recall
the titles of the Betamax films they viewed, but the first one starred
Lito Lapid; he stayed for three (3) to four (4) hours at Andrinos place.
He also claimed that he did not request Patrolman Andrino or Judith
Alesna to go with him to the Liloan police station.

Moisesa Pepito, OSCARs live-in partner and wife of JACINTO

corroborated OSCARs testimony. She maintained that both of them
were at Judith Alesnas carinderia in San Remegio, Cebu before 7:00
p.m. on 26 October 1991. After eating, they went upstairs to
Patrolman Andrinos place and watched a Betamax film. They left the
place at around 11:00 p.m.[11

Judith Alesna, owner of the carinderia and Patrolman Andrino who

rented a space above said carinderia also corroborated OSCARs
testimony regarding his whereabouts on the night in question.12

Patrolman Allan Tan additionally attested to the presence of OSCAR

in San Remegio on the fatal night when he saw the latter come out of
the carinderia of Judith Alesna at about 8:00 p.m.13

As for Patrolman Arselo Necostrato, he declared that he was the

desk sergeant on duty when CLEOFE reported the shooting incident
at the Liloan Police Station. He entered author unknown person in the
police blotter since he could not establish, after interrogating
CLEOFE, who JACINTOs assailant was.[14 On cross-examination,
Patrolman Necostrato clarified that he placed said entry since
CLEOFE told him that JACINTO was shot by a person whom she did
not know and identify.[15

Jeovani, son of JACINTO and Moisesa, testified that his sister was
inside the fence of (their) house shouting when their father was shot.
He, on the other hand, ran to the side of the house and hid behind a
stone. When the assailant left, he went outside the fence and saw his
father lying down. However, he did not see any motorcycle. In fact, he
could not see anything because it was dark and the light on the post
was not lighted.[16

On cross-examination, Jeovani admitted that his sister was nearer

the gunman than he was since she was immediately behind (their)
father when he was shot.[17

After the defense presented its evidence-in-chief, the prosecution

recalled CLEOFE to the witness stand as rebuttal witness. CLEOFE
testified that OSCAR was not arrested at the Liloan police station
when he ostentatiously submitted himself for interrogation so that a
surveillance (could) be made on his person and the real killer
known.[18

On 8 December 1995, the trial court promulgated its decision[19

against OSCAR. The dispositive portion of the decision reads:

FOREGOING CONSIDERED, the Court finds Oscar Mansueto guilty

of Murder, for having shot Jacinto Pepito in the evening of October
26, 1991 and, accordingly sentences him to serve the penalty of
imprisonment ranging from SEVENTEEN (17) Years, FOUR (4)
Months and One (1) Day to TWENTY (20) Years. He is also ordered
to indemnify the heirs of Jacinto Pepito in the sum of TWO
HUNDRED THOUSAND (P200,000.00) Pesos, to pay attorneys fees
of TWENTY THOUSAND (P20,000.00) Pesos and to pay the costs.

SO ORDERED.

OSCAR appealed to the Court of Appeals which was docketed as

CA-G.R. CR No. 19782.

On 15 June 1998, the Court of Appeals promulgated its Decision,[20

the decretal portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
AFFIRMING the trial courts decision subject to the MODIFICATION
that accused-appellant is hereby sentenced to a penalty of
RECLUSION PERPETUA. In view thereof, and in conformity with
Rule 124, Section 13 of the Rules of Court, the Court refrains from
entering judgment, certifies the case and elevates the entire records
hereof to the Supreme Court for Review.

SO ORDERED.

Conformably with our policy in criminal cases certified by the Court of

Appeals pursuant to Section 13 of Rule 124 of the Rules of Court, we
required OSCAR in our Resolution of 5 December 1998 to file an
additional Brief, if he is so minded. He did file an Appellants Brief on
16 February 1999. He alleges therein that the Court of Appeals
gravely erred in (1) holding that he conspired with an unknown
person in the killing of JACINTO, (2) giving credence to the
statements of witness CLEOFE immediately after the shooting
incident as part of the res gestae, and (3) finding him guilty beyond
reasonable doubt of the crime of murder.

The Office of the Solicitor General filed the Appellees Brief on 25

August 1999. It urges us to affirm the challenged decision of the
Court of Appeals, except as to the indemnity which it proposed
reduced to P50,000.

At the outset, it must be stated that unless the prosecution proves the
guilt of the accused in a criminal suit beyond reasonable doubt, the
constitutional presumption of innocence applies and the accused
must be acquitted. Even though an accused invokes the inherently
weak defense of alibi, such defense acquires commensurate strength
where no positive and proper identification has been made by the
prosecution witnesses, as the prosecution still has the onus probandi
in establishing the guilt of the accused.[21

Before we can apply the rule that positive identification prevails over
mere denial and alibi, it is necessary that the credibility of the
eyewitness be first put beyond question. This Court has always
recognized that the trial courts are best equipped to pass upon the
credibility of witnesses, having had the opportunity to observe
firsthand the demeanor and actuations of the witness while on the
witness stand.[22 The matter of assigning values to declarations at
the witness stand is most competently carried out by the trial judge
who, unlike appellate judges, can weigh such testimony in light of the
witnesss behavior and attitude at the trial, and the conclusions of the
trial judge command great weight and respect.[23 We see no cogent
reason to depart from this rule.

The trial court believed CLEOFE and found her to be a credible

witness when she testified that OSCAR was the driver of the getaway
motorcycle. In its decision, the trial court stated that:

On the other hand, the identification by witness, Cleofe Pepito of the

accused as the motorcycle driver, who was waiting in the wings to
facilitate the escape of the gunman was never destroyed by the
defense. In fact, in answer to the question of private prosecutor
whether witness Cleofe Pepito had a good look at the man who was
driving the motorcycle, her answer was a definite yes, and when she
was asked as to why she was definite, her answer was that she was
familiar with his face because she had often seen him. Later on, as
records show, this witness was able to explain her familiarity and it
was the result of having been instructed by her mother to collect
accounts supposedly due her mother from the accused...[24

OSCAR, however, argues in his Appellants Brief that CLEOFE could

not have recognized him as the driver of the motorcycle during the
five (5) seconds that she claimed to have glanced at him and the
gunman while fleeing. OSCAR claims that (1) CLEOFEs view of the
driver was obstructed by the gunman, who boarded the motorcycle
behind the driver; (2) CLEOFE was facing the backs of the driver and
the gunman as they sped off towards Cebu City; and that (3) there
was no light from the lamppost. He cited CLEOFEs testimony as
follows:

Atty. Alo:

Q: My question is, when you saw the motorcycle for a period of five
(5) seconds the situation in the motorcycle was that, the rider was
there already behind the driver?

A: Yes, he was already there.

...
Q: Now the motorcycle when you saw it for five (5) seconds was
already facing towards Cebu City?

A: Yes.

Q: And there was a motion already, the engine was started [sic]?

A: Yes.

Q: And you notice(d) it only when the rider sat at the back. That is the
time you saw the motorcycle?

A: I saw him when he rode the motorcycle when the motorcycle was
running.[25

OSCAR further maintains that:

Witness could not have recognized [him] at that time because the
assailant and the driver were facing against her [sic], which means
that Cleofe Pepito could not have had a glimpse of the drivers face
because he was covered by the trigger man who was then seated at
the back of the driver of the motorcycle. . .[26

CLEOFE, however, testified that:

Atty. Alo:

Q: But you must remember that at 8:30 o clock in the evening, it is

already night (sic). It is (sic) already very dark, is that correct?

A: Yes.

Q: And because of that, even you who is very young can make a
mistake of looking at the light that comes across the street towards a
person, is that correct?

A: I was not mistaken in that because I am so familiar with his face. I

can recognize him even when his back is turned. (Witness saying that
at the same time pointing to the accused).[27
In fact, CLEOFE confirmed that everything that happened that fateful
evening of 26 October 1991 was captured like a photograph (in) her
mind.[28

As to the allegation that there was no light at the lamppost, a review

of the transcript of stenographic notes reveals that CLEOFE testified
that the place where OSCAR waited with his motorcycle was lighted
by a mercury bulb from the vulcanizing shop of Arnold Hernandez.
She elaborated:

Atty. Alo:

Do you recall having made an affidavit in connection with your

investigation before the Fiscals Office?

A: I remember having executed an affidavit at the police station at the

Ramos Supermarket.

Q: Now, you remember what you have stated in your affidavit?

...

Court:

Answer the question. Can you still recall what you stated?

A: Yes.

Atty. Alo:

Q: Now, on this important question of identity, could you recall if you

stated in that affidavit that the light from the vulcanizing shop was the
light that caused you to see the motorcycle and the driver?

A: That was not the only light. The light coming from the vulcanizing
shop was not the only source of light at that time. There was a
motorcycle vehicle coming or passing by at that time.

Q: . . . Now, you said that it was the light of Arnold Hernandezs shop
that lighted the motorcycle and the driver when you saw the driver.
Do you recall that?
A: Yes.

...

Q: That is why you made the statement that the light of the
vulcanizing plant was the one that lighted the motorcycle, is that
correct?

A: It was one of the sources of the light.[29

Cross Examination

By Atty. Alo:

Q: Going back to the subject matter of light. You mentioned that there
was a light coming from the vulcanizing plant of Arnold Hernandez.
This light of Arnold is in his shop?

A: Yes.

Q: While the motorcycle is across the road?

A: Yes.

Q: So, the light involves only a bulb?

A: Mercury.

Q: And it is under the roof of his house?

A: Inside the vulcanizing there is a light but there are also lights in
post(s) around the shop.

...

Q: You describe the light. What was that again?

A: Mercury.

Q: Similar to the (sic) used by the Visayan Electric Company in the

post(s) here, in Cebu City?
A: No, sir.

Q: You mean to say the light of the Visayan Electric is much brighter
(than) the one used by Arnold?

A: The light in the post of the shop of Arnold is brighter than the
Visayan Electric.

Q: Now when you were outside your gate, could you tell us how fast
was that car passed (sic) the motorcycle during that time?

A: Natural.

Q: That car was going to the north or to the south?

A: To the north.

Q: Meaning to say, it was proceed(ing) to Danao?

A: Yes.

Q: And it was timely when you looked at the motorcycle that car was
passing alighted (sic) to (sic) the motorcycle. Is that correct?

A: Yes.

Q: The lights of the car hit the motorcycle directly. Is that correct?

A: It was lighted.[30

We have said before that:

Visibility is indeed a vital factor in the determination of whether or not

an eyewitness could have identified the perpetrator of a crime.
However, it is settled that when conditions of visibility are favorable,
and the witnesses do not appear to be biased, their assertion as to
the identity of the malefactor should normally be accepted.
Illumination produced by kerosene lamp or a flashlight is sufficient to
allow identification of persons. Wicklamps, flashlights, even moonlight
or starlight may, in proper situations be considered sufficient
illumination, making the attack on the credibility of witnesses solely
on that ground unmeritorious.[31
In lending added credence to CLEOFEs testimony, it is not amiss to
state that relatives of a victim of a crime have a natural knack for
remembering the face of the assailant and they, more than anybody
else, would be concerned with obtaining justice for the victim by the
malefactor being brought to the face of the law. Indeed, family
members who have witnessed the killing of a loved one usually strive
to remember the faces of the assailants.[32

Even assuming that CLEOFE did not actually identify OSCAR as the
driver of the getaway motorcycle, sufficient circumstantial evidence
was established to uphold his conviction.

Section 4, Rule 133 of the Revised Rules of Court provides that:

Circumstantial evidence, when sufficient . -- Circumstantial evidence

is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a

conviction beyond reasonable doubt.

Circumstantial evidence is that evidence which proves a fact or series

of facts from which the facts in issue may be established by
inference. Such evidence is founded on experience and observed
facts and coincidences establishing a connection between the known
and proven facts and the facts sought to be proved.[33

The following circumstances based chiefly on Jose Pepitos

testimony35 were established by the State:

1. Jose Pepito saw OSCAR and a companion drinking beer at

Myrnas store at Bo. Pitogo, Consolacion, Cebu in the evening of 26
October 1991, and then leaving towards Pag-utlan, Yati, Liloan, on
board a motorcycle.

2. Several minutes later, an unidentified man shot JACINTO at the

gate of his mothers house in Pag-utlan, Yati, Liloan, Cebu.
3. On the road to Pag-utlan, Jose Pepito heard the shot, after which,
he saw a man run to the other side of the road where another man
waited on a motorcycle. As soon as the gunman boarded, the duo
fled.

4. Jose Pepito observed that the men and the motorcycle he had
seen at Myrnas store were the same persons and motorcycle he saw
near Arnold Hernandezs vulcanizing shop immediately prior and after
the shooting. Pepito saw the gunman and OSCAR flee on board the
motorcycle.

5. Jose Pepito positively identified OSCAR as the driver of the

motorcycle.

Piecing this together with CLEOFEs undisputed testimony that she

saw her fathers gunman run to a getaway motorcycle driven by
OSCAR, the State has successfully conjured up a murder picture
attributable to an unidentified gunman and OSCAR as the motorcycle
driver.

In his Appellants Brief, OSCAR additionally attempts to impeach the

credibility of CLEOFE on the grounds of bias and her failure to
mention OSCAR as the driver of the getaway motorcycle when she
reported the shooting incident to the Liloan Police immediately after it
occurred should form part of the res gestae. OSCAR contends that
the omission, as part of the res gestae, should have been afforded
evidentiary weight.

OSCAR, however, misunderstands the admissibility in evidence of

statements as part of the res gestae which is considered in Section
42, Rule 130 of the Rules of Court as an exception to the rule on
hearsay evidence. Res Gestae refers to those exclamations and
statements made by either the participants, victims, or spectators to a
crime immediately before, during, or after the commission of the
crime, when the circumstances are such that the statements were
made as a spontaneous reaction or utterance inspired by the
excitement of the occasion and there was no opportunity for the
declarant to deliberate and to fabricate a false statement.[34 The rule
in res gestae applies when the declarant himself did not testify and
provided that the testimony of the witness who heard the declarant
complies with the following requisites: (1) that the principal act, the
res gestae, be a startling occurrence; (2) the statements were made
before the declarant had the time to contrive or devise a falsehood;
and (3) that the statements must concern the occurrence in question
and its immediate attending circumstances.[35

Since CLEOFE herself testified, there is absolutely no room for the

application of the rule on res gestae. Besides, subject matters not
mentioned or are outside the statements or explanations given by the
declarant, in this case CLEOFE, obviously do not form part of the res
gestae.

It is also stressed that CLEOFE reported the shooting incident at the

Liloan Police Station some thirty minutes after. Her declaration
disclaiming knowledge of the name of JACINTOs assailant was not
inconsistent with her belated claim that OSCAR was the driver of the
getaway motorcycle. CLEOFEs alleged omission is more or less
attributable to the fact that her interrogation at the Liloan police
station centered on the identity of the gunman not on the driver of the
motorcycle. In any event, she testified that she mentioned OSCAR as
the companion of the gunman when she first reported the shooting
incident, but was uncertain whether her statement was entered in the
(police) blotter, thus:

Atty. Alo:

Q: . . . It is only now that you told the court that they did not ask so
you did not give the statement. So, when you were asked who was
the author (of the crime), you answered the author is unknown, is that
correct?

A: The question that was asked of me was who shot (JACINTO) and
then I answered I do not know. I really do not know the person and I
was not asked whether he had a companion.

Q: So, when for the first time were you asked if there was a
companion of the one who shot your father?

A: Because when I arrived at the (Liloan) police station, somebody

asked me what happened and then I told him that a shooting incident
took place, that somebody shot my father and then another asked me
who was the one who shot my father and I answered I do not know.
Then again, somebody else asked me was there a companion of the
one who shot your father? And there were many more questions
asked of me all around.

Court:

When you were asked if there was any companion of the person who
shot your father, did you answer?

A: I answered Your Honor but I do not know whether it was entered

into the blotter because they let me sit down already since I was still
very scared at the time and I do not know what transpired next.

Q: And what was your answer when you were asked if there was a
companion of your father?

A: That there was. . .[36

Further, the entry in the police blotter37 indicating the author of the
crime as an unknown person failed to impeach the credibility of
CLEOFE. It is clear from the facts of the police blotter that the
unknown person referred to therein is the gunman:

Facts: Daughter of the victim reported and alleged that at the

aforestated place, time and date author went to their house looking
for his father; when his father acosted (sic) the author same with
deliberate intent to kill shoot once hitting the victims breast and fled
away with a motorcycle.

We held in People v. Dacibar and Dicon,38 that:

In addition, the fact that the first blotter report made by the victims
wife refers to the assailants as unidentified persons does not detract
from the veracity of her positive identification of appellants as the
perpetrators of the crime in a later report, and in the course of trial. In
the first place, we have held that entries in the police blotter should
not be given undue significance or probative value, as they do not
constitute conclusive proof.

Incidentally, OSCAR made it appear in his Appellants Brief that the

entry for author in the police blotter was UNKNOWN PERSONS and
not UNKNOWN PERSON. He also averred that in the police report,
witness (CLEOFE) mentioned that the authors of the crime were
UNKNOWN PERSONS who fled away with a motorcycle. We see this
as a desperate ploy to mislead this Court.

In support of his claim that CLEOFE showed bias in testifying against

him, OSCAR states in his Brief:

The testimony of Cleofe Pepito undisputably [sic] showed bias

against the appellant. Her pointing to appellant as the driver of the
motorcycle is clearly an afterthought after she learned of her mothers
illicit relationship with the appellant (TSN, 24 August 1993). She had
all the reasons to falsely testify against the appellant whom she and
his deceased fathers relatives blames [sic] as the cause of her
parents [sic] break-up. Remorse moved her to press appellant as one
of the perpetrators of her fathers death.[39

The illicit affair between her mother and OSCAR is too trivial a reason
for CLEOFE to wrongfully accuse OSCAR as one of the perpetrators
in the murder of her father. The earnest desire to seek justice for a
dead kin is not served should witnesses abandon their conscience
and prudence and blame one who is innocent of the crime. It would
be unnatural for a person who is interested in vindicating the crime
committed against his relative to accuse somebody other than the
real culprit as the perpetrator.[40 We agree with the trial courts
finding on CLEOFEs credibility.

Considering that the prosecution discharged its burden of proving that

OSCAR aided the gunman in slaying JACINTO by driving the
getaway motorcycle, this Court is not convinced of OSCARs
innocence on the basis of an alibi. It is settled that alibi is an
inherently weak defense, easy to fabricate and highly unreliable.[41
For said defense to prosper, the accused must not only prove that he
was at some other place at the time the crime was committed but that
it was, likewise, physically impossible for him to be at the locus
criminis at the time of the alleged crime.[42

The State showed that it was not physically impossible for OSCAR to
be at the locus criminis since, by his own admission, Liloan is only 90
kilometers away from San Remegio, Cebu where he allegedly was in
the evening of 26 October 1991. He also admitted that the sidecar of
his tricycle could be detached from the motorcycle, hence, he could
have used said motorcycle in traveling to Liloan.
Finally, OSCARs claim that conspiracy was not proved should not
detain us further.

The well-settled rule is that conspiracy must be proven as clearly as

the commission of the offense itself. True, direct proof is not
essential, because conspiracy may be inferred from the conduct of
the accused before, during and after the commission of the crime,
showing that they had acted with a common purpose and design.[43

Unity in purpose and design between OSCAR and the gunman are
evident from the following circumstances:

1. OSCAR and the gunman were seen together at Myrnas store

drinking beer shortly before the shooting of JACINTO. They also left
the store together.

2. Before the shooting incident, OSCAR, was seen at the crime scene
on a motorcycle. After the shooting incident, OSCAR and the gunman
(who climbed on board the motorcycle) were seen quickly driving
away from said place.

Is OSCAR guilty of homicide or murder? In charging OSCAR of the

crime of murder, the Information alleges three (3) of the qualifying
circumstances, mentioned in Article 248 of the Revised Penal Code,
to wit: treachery, evident premeditation and use of motor vehicle.

There is treachery when the offender commits any of the crimes

against persons employing means, methods or forms of attack which
tend directly and specially to insure the execution of the crime without
risk to himself arising from the defense which the offended party
might make.[44

Evident premeditation is appreciated upon proof of (a) the time when

the accused determined to commit the crime; (b) an act manifestly
indicating that the accused clung to his determination; and (c) a
sufficient lapse of time between such determination and execution to
allow him to reflect upon the consequences of his act.[45

But the prosecution failed to prove both treachery and evident

premeditation. However, it duly proved use of motor vehicle. There is
no dispute that OSCAR and the gunman utilized a motorcycle in
going to the scene of the crime and in facilitating their escape after
consummating the crime thus charged.[46

On 26 October 1991, when OSCAR and the gunman killed Jacinto

Pepito the penalty for murder under Article 248 of the Revised Penal
Code was reclusion temporal maximum to death.[47 There being no
other modifying circumstances proven, the penalty imposable should
be the medium thereof per Article 64 of the Revised Penal Code,
which is reclusion perpetua.

The amount of P50,000 is awarded as indemnity under Article 2206

of the New Civil Code in favor of the heirs of JACINTO. The award of
moral damages of P200,000 declared by the trial court should,
however, be deleted since none of the heirs and relatives of
JACINTO testified on his or her sufferings as a result of JACINTOs
death.

WHEREFORE , in view of all the foregoing, judgment is hereby

rendered AFFIRMING the 15 June 1998 Decision of the Court of
Appeals, finding herein accused-appellant Oscar Mansueto guilty
beyond reasonable doubt of the crime of murder and sentencing him
to suffer the penalty of reclusion perpetua, except as to the award of
moral damages, which is hereby deleted. He is also ordered to
indemnify the heirs of the victim Jacinto Pepito in the amount of
P50,000.

No pronouncement as to costs.

SO ORDERED.