[G.R. No. 129534 & 141169[1].
June 6, 2001] Macandog pointing his rifle at him while Renato Macandog and Bernardo Ibanez
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NESTOR
MACANDOG, EDDIE MACANDOG, RENATO MACANDOG and
BERNARDO IBAEZ, accused.
NESTOR MACANDOG, accused-appellant.
DECISION
GONZAGA-REYES, J.:
Accused-appellant Nestor Macandog together with co-accused Eddie
Macandog, Renato Macandog and Bernardo Ibanez were charged with the crimes
of FRUSTRATED MURDER (Criminal Case No. 5985) and MURDER (Criminal
Case No. 5986) in two separate Informations[2] filed before the Regional Trial Court
of Legaspi City, Branch 3, which respectively read as follows:
1. Criminal Case No. 5985 - Frustrated Murder
That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque,
Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of
this Honorable Court, said accused with intent to kill and armed with long rifles and
bolos, conspiring and confederating with each other, did then and there, willfully,
unlawfully and feloniously with evident premeditation, treachery and abuse of
superior strength, shoot one EMILIO ATIVO, hitting him in the lower left temple and
passing thru his right cheek, thus the perpetrators performed all the acts of
execution which would produce the felony of murder as a consequence but which,
nevertheless, did not produce it by reason of causes independent of their will, that
is, due to the timely medical attention accorded the victim, to his damage and
prejudice.
2. Criminal Case No. 5986 - Murder
That at or about 8:00 P.M. of the 19th day of July 1992 at Brgy. San Roque,
Municipality of Jovellar, Province of Albay, Philippines and within the jurisdiction of
this Honorable Court, said accused with intent to kill and armed with long rifles and
bolos, conspiring and confederating with each other did then and there, willfully,
unlawfully and feloniously with evident premeditation, treachery and abuse of
superior strength, shot to death one GLORIANO BAGAMASBAD, to the damage
and prejudice of his legal heirs.
Upon arraignment on April 26, 1993[3] accused Nestor Macandog, assisted by
counsel, pleaded NOT GUILTY to the charges against him. On October 26, 1993,
accused Eddie Macandog was arrested and upon his arraignment on November
17, 1993[4] also pleaded not guilty. The other co-accused have remained at large.
The evidence for the prosecution established the following facts: At around
8:00 oclock in the evening of July 19, 1992, Emilio Ativo was having a drinking
spree with Juan Ativo and Gloriano Bagamasbad at the latters house at San
Roque, Jovellar. Albay.[5] Suddenly, a shot rang out and the bullet hit the left face of
Emilio causing him to lie flat on the ground. Emilio then saw accused Eddie
were standing near the house holding their bolos.[6] Two more shots were fired and
Gloriano Bagamasbad was hit and fell to the ground. A few minutes after, sensing
that all the accused had already left, Emilio, with blood oozing from his wounded
face, helped Gloriano, who was also wounded on his back, stood up and they both
proceeded to the nearby house of Ederlina Abardo, Glorianos sister. [7] While they
were at a distance of about 7 to 8 meters to the house of Ederlina, they stopped as
Gloriano was so weak and could hardly walk. At that instance, Emilio asked
Gloriano if the latter knew the person who shot him, to which Gloriano replied
Nestor Macandog.[8] Emilio then shouted for help.
Ederlina Abardo testified that at around 8:00 p.m. of July 19, 1992, she was
inside her house located a few meters from the house of Gloriano when she heard
three (3) gunshots.[9] She peeped through the closed window of her house and saw
Nestor Macandog and Eddie Macandog with long firearms slung over their
shoulders, while Bernardo Ibanez and Renato Macandog who were holding bolos,
were coming from the direction where the house of Gloriano was located and
walking towards the Centro or Poblacion of Jovellar. [10] After a while, she heard her
brother Gloriano call her name; thus she went down her house and saw Gloriano
and cousin Emilio Ativo lying on the street bathing in their own blood. [11] With the
help of Emilio, Ederlina lifted Gloriano and brought him to her house. She then
asked Gloriano the persons who shot him to which the latter replied that he was
shot by Eddie and Nestor Macandog because of a land dispute. [12] She intimated
that the Macandogs were ejected from two parcels of land owned by their family by
virtue of a decision in a forcible entry case filed by her mother, Paz Bagamasbad,
against the Macandogs. Ederlina added that after talking to Gloriano for 30
minutes, her brother expired. Emilio Ativo however, was brought to the Albay
Provincial Hospital for treatment on the following day. She then reported the
incident to the police authorities of Jovellar, Albay and to the Human Rights
Commission.
Dr. Joana Manatlao, Albay Rural Health Physician, conducted the autopsy on
the cadaver of the victim Gloriano Bagamasbad on July 20, 1992 and issued an
autopsy report with the following findings:[13]
Wound, gaping, measuring 10 x 27 cms, extending from the distal third of
right arm to the distal third of right forearm with exposure of muscles and
bones at this side and transaction of right radial artery and vein was noted.
Wound, 3 x 5.5 cms located at the 6th ICS right anterior axillary line, 2.5 cms
away from the right lower quadrant of right breast. On further examination, it
penetrated the inferior border of the lower lobe of the right lung. There was
maceration of the superior pole of the right lobe of the liver. Hemothorax and
hemoperitoneum was also noted.
Wound, 0.5 x 0.5 cm, left paravertebral line, between level of T10 and T11.
The cause of death was cardiorespiratory arrest due to hemorrhagic shock due to
gunshot wounds.
 Teresita Bagamasbad, widow of victim Gloriano, testified on the expenses she
incurred as a result of her husbands death and asked for P50,000 damages.[14]
Paz Bagamasbad, mother of deceased Gloriano, testified that on June 3,
1992, the herein accused together with their relatives armed with firearms forcibly
entered her parcels of land located at San Roque, Jovellar, Albay[15] which
prompted her to file a forcible entry case against them before the Municipal Trial
Court of Camalig[16] where a decision dated April 20, 1993 was rendered in her
favor.[17]
On the other hand, accused Nestor Macandog interposed the defense of
alibi. He averred that from 6:00 oclock to 9:00 oclock in the evening of July 19,
1992, he was watching betamax in the house of Gabriel Arcangel situated at
Barangay Mercado;[18] that the last time he was in Barangay San Roque was in
1986 and since then had not returned back as he was wanted by the NPA for being
a rebel returnee;[19] that Barangay Aurora is about six (6) kms. away from Brgy. San
Roque and would take two hours to go there at nighttime.[20]
GABRIEL ARCANGEL corroborated the alibi interposed by accused Nestor
Macandog that the latter was in his house on July 19, 1992 at around 6:45 P.M.
viewing betamax.[21]
ANTONIO ARISPE of PAGASA, Legaspi City was presented to show the
weather condition in Albay on July 19, 1992. He testified that on July 19, 1992
Public Storm Signal No. 1 was in effect over the Bicol Region due to the presence
of Tropical Storm Ditang; that the weather condition was light to moderate and rain
fell over the area almost the whole twenty-four-hour period with very low visibility
from almost zero to not more than 1,000 meters during periods of rain stoppage;
[22]
that the illumination was too low due to overcast skies and falling precipitation.[23]
EMILIO ATIVO was presented by the defense as hostile witness; he was
asked to confirm his sworn statement given to the police authorities stating that he
only saw Eddie Macandog, with long firearm while Renato Macandog and Bernardo
Ibaez were holding bolos on the night of the incident.
After a joint trial, the court a quo on December 27, 1996 rendered its
decision[24], the dispositive portion of which reads as follows:[25]
WHEREFORE, in view of the foregoing considerations, this Court finds accused
EDDIE MACANDOG and NESTOR MACANDOG GUILTY BEYOND
REASONABLE DOUBT of the crime of FRUSTRATED MURDER as charged in
Criminal Case No. 5985. Accused NESTOR MACANDOG is hereby sentenced to
suffer taking into consideration the mitigating circumstance of voluntary surrender,
to an indeterminate penalty ranging from 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. With respect to accused EDDIE MACANDOG, no mitigating or
aggravating circumstance having been appreciated for or against him, he is hereby
sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day
of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1)
day of reclusion temporal as maximum. Both accused are ordered to indemnify the
victim Emilio Ativo the amount of P55,000.00 as hospitalization and medical
expenses incurred by Emilio Ativo for the injuries suffered by him and the amount of
P20,000.00 representing loss of income in consequence thereof as a farmer.
Likewise, this Court finds both accused EDDIE MACANDOG AND NESTOR
MACANDOG GUILTY BEYOND REASONABLE DOUBT of the crime of MURDER
as charged in Criminal Case No. 5986 and are hereby sentenced to suffer the
penalty of reclusion perpetua. They are further ordered to indemnify the heirs of the
victim Gloriano Bagamasbad the following amounts:
a) P50,000.00 as civil indemnity;
b) P50,000 as moral damages, and
c) P35,000.00 as expenses related to the death and burial of the victim
Gloriano Bagamasbad.
The trial court rejected the defense of alibi and denial raised by accused
Nestor and Eddie Macandog stating that they failed to show physical impossibility
of their presence at the scene of the crime. It also found the ante-mortem statement
of Gloriano to have fully met the requirements of a valid dying declaration hence
admissible; that there was the presence of conspiracy among the accused, i.e., that
the prosecution had shown that the two accused with intent to kill and armed with
long rifles and bolos conspired with each other to kill Gloriano Bagamasbad and
Emilio Ativo.
Accused Eddie Macandog did not appeal hence his conviction in the two
criminal cases had become final and executory. On the other hand, accused Nestor
Macandog filed his notice of appeal for his conviction only in Criminal Case No.
5986 for murder,[26] thus the decision in Criminal Case No. 5985 (frustrated murder)
from which he had not appealed has also become final and executory.
In his brief, accused-appellant Nestor Macandog alleges that the trial court
gravely erred in convicting him despite insufficiency of evidence as his guilt was not
proved beyond reasonable doubt; and in finding that he conspired with the other
accused in this case.[27]
Accused-appellant Nestor Macandog claims that the trial court relied heavily
on the dying declaration of deceased Gloriano Bagamasbad despite the fact that
not all the requisites for the admissibility of a dying declaration had been
met. Appellant further alleges that it was highly improbable for the deceased
Gloriano Bagamasbad to have seen the one who fired at him considering that the
attack was so sudden and unexpected and after being hit, he was immediately
thrown flat to the ground, thus the deceased was not a competent
witness. Accused-appellant also points out that he was not among the persons
seen by victim Emilio Ativo after the shooting incident.
The appeal has no merit.
When the issue is one of credibility of witnesses, the appellate courts will
generally not disturb the findings of the trial court, considering that it is in a better
position to decide the question, having heard the witnesses themselves and
observed their deportment and manner of testifying during the trial, unless it had
plainly overlooked certain facts of substance and value that if, considered, might
affect the result of the case.[28] A review of the records of the case and the
arguments raised by accused-appellant in his brief provide no cogent reason why
we should deviate from the factual finding of the trial court that accused-appellant
Nestor Macandog and co-accused Eddie Macandog were the ones who shot the PROSECUTOR TOLOSA:
deceased Gloriano Bagamasbad.
Q: And how about Emilio Ativo?
We agree with the trial court when it upheld the admissibility of the dying
declaration of Gloriano, to wit:[29] WITNESS:
A: Emilio was able to walk in going inside my house, sir.
However, to be valid and admissible in evidence, the following requisites must
concur: Q: Now, what transpired next when Gloriano Bagamasbad and Emilio were
already inside your house and both of them bloodied?
(a) that the declaration must concern the cause and surrounding A: While Gloriano Bagamasbad was inside my house, we were able to talk with
circumstances of the declarants death; each other for around thirty (30) minutes, sir, after which, he expired.
(b) that at the time the declaration was made, the declarant was under a Q: What did you and Gloriano Bagamasbad talk about?
consciousness of an impending death;
A: I asked him what happened to him and he answered me that he was shot,
(c) that the declarant is competent as a witness; and sir.
(d) that the declaration is offered in a criminal case in which the Q: And what else did you ask of him?
declarant is the victim.
A: I asked him who shot him and according to him he was shot by Eddie and
Nestor Macandog, sir.
It is evident from the facts that a valid dying declaration is present in these cases
and therefore the dying declaration of Gloriano Bagamasbad is admissible. Q: What else did you ask him?
WITNESS:
First, the declaration of Gloriano concerns the cause and surrounding
circumstances of his death, that he was shot by accused Eddie and Nestor A: I ask him why Eddie and Nestor Macandog shot him.
Macandog because of a land dispute (TSN, Pages 31-32, June 3, 1993, Ederlina
Abardo); second, at the time the declaration was made, Gloriano was under the PROSECUTOR TOLOSA:
consciousness of an impending death. As a matter of fact, he died within thirty (30)
Q: What was his reply?
minutes after making his declaration. (TSN, Pages 31-32, & 71, June 3, 1993,
Ederlina Abardo); third, that at the time Gloriano made his declaration, he was a A: According to him this is the case of our land where they said blood will spill.
competent witness since he was still conscious and could still speak competently
although he was already dying, and fourth, the declaration of Gloriano was offered Q: What is that case about regarding the land as mentioned by Gloriano
in a criminal case for Murder in which he was himself the victim. Bagamasbad?
ATTY. GIANAN:
Contrary to appellants claim that Gloriano was not a competent witness
because he was not able to see his assailants, the testimonies of Ederlina Abardo, Objection, your honor. This is supposed to be trial of a case for murder and
to whom the dying declaration was given, which was also heard by Emilio Ativo, frustrated murder, your honor.
clearly showed that Gloriano was categorical in pointing to appellant Nestor
Macandog and Eddie Macandog as the persons who shot him. Gloriano even COURT:
provided for the reason why the accused shot him, i.e., because of a land dispute Witness may answer.
between his family and the family of the accused. Thus Ederlina testified as follows:
[30]
WITNESS:
Q: Now having found Emilio Ativo and Gloriano Bagamasbad bathing in their A: This was a case over the land wherein the Macandogs and cousins entered
own blood, outside your house, what did you do? our property and so my brother filed a case against them, sir.
A: Because Gloriano Bagamasbad could not stand up anymore, we lifted him, On some clarification from the Court:[31]
sir.
COURT:
Q: Where did you bring his body?
Q: According to you, your brother was serious. Was he dying?
A: We brought his body inside my house, sir.
WITNESS:
 A: He was already in a serious condition, your honor, because of the wounds A: Yes, sir.
that were inflicted on his body. He was almost dying of the wounds that he
had, your honor. Q: And this is within the Municipality of Jovellar?

Q: Now, one last question. Was he conscious that he was dying? A: Yes, sir.

A: Yes, your honor. He was still conscious that time. He was almost dying, your Q: Now, this house where you, Juan Ativo and Gloriano Bagamasbad drank is
honor. And he even said Maybe I am dying already. also within the area of Barangay San Roque?

Emilio Ativo, also a victim in the same shooting incident and who was with A: Yes, sir.
Gloriano when they went to Ederlinas house, heard the conversation between Q: Now, you said that Ederlina is a Barangay Councilwoman who investigated
Gloriano and Ederlina and testified as follows:[32] Gloriano, were you also present when she profounded questions to
Q: Now, what did you do since Gloriano was already very weak before he reach Gloriano?
the house of Ederlina? A: Yes, sir, I was also around.
A: I shouted and sought help. Q: And what were the questions asked to Gloriano Bagamasbad by Ederlina
Q: Was there any help or assistance given you after you called for? Bagamasbad?

A: Ederlina, sir. A: Ederlina asked Gloriano, who shot you, and he answered it was Nestor.

Q: By the way, at that time how far were you already from the house of Q: What other questions did Ederlina ask?
Ederlina? WITNESS:
A: From the place where Im seated up to that door, sir, which is around 7 to 8 A: Why were you shot?
meters, more or less.
PROSECUTOR TOLOSA:
PROSECUTOR TOLOSA:
Q: And was there a reply from Gloriano?
Q: Now, what help did Ederlina give you and Gloriano?
A: Gloriano answered because of land dispute between Nestor and Gloriano.
WITNESS:
Q: Now, what happened that evening to Gloriano Bagamasbad?
A: Gloriano Bagamasbad was lifted by Ederlina Bagamasbad and I just walk,
sir. A: He died, sir.
Q: Towards where did Ederlina bring this Gloriano Bagamasbad? Q: Do you know how many minutes after he was brought inside the house of
Ederlina when Gloriano died?
A: Inside her house, sir.
A: Yes, sir.
Q: How about you, where did you proceed?
Q: How many minutes?
A: I also got inside the house of Ederlina, sir.
A: Around one-half (1/2) hour, sir.
Q: Now, what did Ederlina do after bringing Gloriano Bagamasbad inside her
house? The positive declaration of the deceased as to the identity of his assailants,
given with the consciousness that death is imminent is undoubtedly entitled to great
A: Ederlina investigated Gloriano Bagamasbad, sir. weight considering the seriousness of his wounds and his very weak physical
Q: By the way, do you know if Ederlina hold any position in the barangay? condition as shown by the fact that death supervened thirty minutes after his
disclosure to Ederlina. Under the circumstances, there was a great improbability
A: Shes a Barangay Councilwoman, sir. that Gloriano would have trifled with the truth.[33]
PROSECUTOR TOLOSA: Appellants claim that he was not among those persons seen by prosecution
witness Emilio Ativo during the shooting incident is not convincing, and does not
Q: Councilwoman of Barangay San Roque? detract from Glorianos dying declaration. It bears stress that although Emilio Ativo
WITNESS: testified that he had not seen appellant, he also stated that there were other
persons aside from Eddie and Renato Macandog and Bernardo Ibanez. In fact,
Emilio testified that while the rifle of accused Eddie Macandog was pointed at him
while he was lying flat on the ground, two more shots were heard whereupon
Gloriano fell to the ground, which established that another person with a rifle was
present in the place of the shooting. In his dying declaration, Gloriano categorically
identified Nestor and Eddie Macandog as the persons who shot him; such a
positive identification of his own assailants cannot be destroyed by the
incompleteness of Emilios testimony.
Moreover, Ederlina Abardos testimony corroborated Glorianos declaration as
to the presence of appellant Nestor Macandog at the crime scene. She testified that
on the night of July 19, 1992, the time when the crime was committed, she heard
three gunshots and when she peeped through her window, she saw appellant
Nestor Macandog and Eddie Macandog with firearms slung on their shoulders and
Bernardo Ibanez and Renato Macandog holding bolos as they passed by her
house coming from the place where Glorianos house was situated and going to
Centro Jovellar, Albay. She further testified on cross examination that the distance
between her house and the road where the accused passed by was only two
meters[34] and although there was only little illumination coming from the moon,
there was sufficient light coming from her tocalor, a kind of lightning equipment
made of bottle with cloth and kerosene inside [35]. She could not have been mistaken
as to the identities of the accused considering that she had known them from the
time they were born[36] because they were all residents of Barangay San Roque,
Jovellar, Albay, a place where she used to live before the shooting incident.
The fact that Ederlina is the sister of deceased Gloriano Bagamasbad does
not per se make her a biased witness. Mere relationship of the victim to a witness
does not automatically impair her credibility and render her testimony less worthy of
credence where no improper motive can be ascribed to her for testifying.[37] On the
contrary, such relationship lends more credence to a witness testimony considering
her natural interest to see the guilty punished. It would be unnatural for a relative
who is interested in vindicating the crime to accuse anyone other than the real
culprit.[38]
We agree with the trial courts rejection of appellants defense of alibi
considering that Barangay Mercado, the place where he was allegedly watching
betamax on the night of the shooting incident, was only six kilometers away from
San Roque[39], a distance which does not preclude the physical possibility for
accused-appellant to be at the scene of the crime.
Although defense witness Gabriel Arcangel was presented to corroborate
accused-appellants alibi that he was in Barangay Mercado watching betamax on
the night in question, Arcangel testified in the cross-examination that he could not
remember the other dates when appellant Nestor Macandog viewed films in his
house but he remembered the date July 19, 1992 because appellant went to his
house on July 20, 1992 to tell him that he viewed the film on July 19, because he
was suspected of being the one involved in the shooting incident.[40]
The credible testimonies of Ederlina Abardo, victim Glorianos sister, and
Emilio Ativo who both testified on the ante-mortem statements of the victim
convincingly establish the guilt of accused-appellant beyond reasonable doubt.
Although the trial court failed to discuss the presence or absence of the
qualifying circumstances of treachery, evident premeditation and abuse of superior
strength which were alleged in the Information for murder, we find that treachery
attended the killing of Gloriano Bagamasbad. The sudden and unexpected shooting
of Gloriano, who was unarmed and unsuspecting as he was only having a drinking
spree with his companions at his own (Gloriano) house, insured his killing without
any risk to his assailants. It rendered the victim completely unable to defend
himself.
Evident premeditation is not attendant as no proof has been adduced to show
that accused had previously planned the shooting of Gloriano Bagamasbad. Abuse
of superior strength is absorbed in treachery.[41]
We, however, hold that the aggravating circumstance of dwelling, although not
alleged in the Information, should be properly appreciated in the death of Gloriano
Bagamasbad considering that he was killed inside his house. A persons abode is
regarded as a sanctuary which should be respected by everybody. [42] This
aggravating circumstance was however offset by the mitigating circumstance of
voluntary surrender as appellant appeared in the trial court before the warrant of his
arrest was served upon him.[43] In a case, it was held that the fact that the warrants
had already been issued is no bar to the consideration of this mitigating
circumstance, because the law does not require that the surrender be prior to the
order of arrest.[44]
We affirm appellants conviction for murder. The killing was qualified by
treachery. Considering the presence of the aggravating circumstance of dwelling
which was offset by the mitigating circumstance of voluntary surrender, the trial
court correctly imposed the penalty of reclusion perpetua, the medium period of the
penalty of reclusion temporal in its maximum period to death imposable for the
crime of murder.[45]
We also affirm the trial courts award of P50,000 civil indemnity and P50,000
moral damages considering the grief and sorrow suffered by the heirs of the
deceased. However, the award for actual damages is reduced to the amount of
P9,500 for burial expenses since the only receipt presented by the prosecution was
for the payment made to Funeraria Nuestra Sra. De Salvacion of Guinobotan,
Albay. To justify an award of actual damages, it is necessary to prove with a
reasonable degree of certainty, premised upon competent proof and on the best
evidence obtainable by the injured party, the actual amount of loss.[46]
We note that the notice of appeal filed by accused-appellant Nestor
Macandog was only for Murder (Criminal Case No. 5986) but the case was
assigned with two docket numbers, i.e., G.R. Nos. 129534 and 141169. Hence
case records should be corrected with the deletion of the later docket number.
WHEREFORE, the appealed decision convicting appellant for the crime of
murder in Criminal Case No. 5986, imposing the penalty of reclusion perpetua and
awarding fifty thousand pesos (P50,000) by way of civil indemnity and fifty
thousand pesos (P50,000) moral damages is AFFIRMED with the modification that
the award of actual damages is reduced to P9,500.
The Clerk of Court is ordered to delete GR. No 141169 from the title of the
case.

[G.R. No. 146865. February 18, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. ELGIN LATAYADA (at
large), appellant.
DECISION
PANGANIBAN, J.:
When the evidence falls short of proving all the elements of carnapping with
homicide, but the killing is conclusively established, the accused may be convicted
only of homicide when the Information does not allege any qualifying circumstance.
The Case
For automatic review before this Court is the December 29, 2000 Decision [1] of
the Regional Trial Court (RTC) of Cagayan de Oro City (Branch 18) in Criminal
Case No. 97-917, finding Elgin Latayada guilty beyond reasonable doubt of
carnapping with homicide. The decretal portion of the Decision reads:
WHEREFORE, in view of all the foregoing considerations, the Court hereby finds
accused ELGIN LATAYADA, GUILTY beyond reasonable doubt of the crime of
CARNAPPING WITH HOMICIDE, in violation of RA 6539, known as Anti-
Carnapping Act of 1972, as amended by Sec. 20 of Republic Act 7659, and there
being one generic aggravating circumstance of treachery without any mitigating
circumstances, the said accused is hereby sentenced to suffer the supreme penalty
of DEATH by lethal injection. He is also directed to pay the heirs of the victim the
sum of P18,899.70 as hospitalization expenses, another P7,300.00 as burial
expenses, P50,000.00 moral damages and further directed to pay the cost of this
proceeding. Let another Warrant of Arrest be issued to the convict for him to serve
his sentence. Pursuant to R.A. 7975 and Rule 122, Sec. 10 of the Rules of Court,
let the entire records of this case be forwarded to the Supreme Court for automatic
review.[2]
In an Information dated March 7, 1997, appellant was charged with
carnapping with homicide as follows:
That on or about 6:00 oclock in the evening, more or less, of October 29, 1995 at
Sitio Hanopolan, Claveria, Misamis Oriental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with intent to gain and without
the consent of the owner, did then and there, willfully, unlawfully and feloniously
take, steal and drive away one (1) unit Honda TMX Motorcycle, color blue, bearing
plate No. 9B-6096-T, with Serial Chassis No. 951-50025, with Motor No. KCOIE-
028425 PH, Model 1995, owned and belonging to Rodrigo Estrada, valued at
P63,000.00 to his damage and prejudice and in the course of the commission of
the carnapping of the vehicle, accused with intent to kill, did then and there, willfully,
unlawfully and feloniously stab one Pedro Payla, the driver of the motorcycle, with
the use of a sharp bladed weapon, thus hitting the victim on different parts of his
body causing his death thereafter.[3]
During his arraignment on September 12, 1997, [4] appellant, with the
assistance of his counsel de oficio, [5] pleaded not guilty to the charge. After trial in
due course, the court a quo rendered the assailed Decision.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) quoted from appellants
Brief the summary of the evidence for the prosecution, which is as follows:
Sometime on October 29, 1995 at about 6:00 o clock in the evening, Pedro Payla
arrived at the house of Vicenta Cordino at Sitio Hanopolan, Claveria, Misamis
Oriental. Pedro Payla allegedly told Vicenta Dont be afraid, Nang, I am the son of
Lucia Payla, I was stabbed by Elgin Latayada, bring me to the hospital. Vicenta,
who was already old, then called her neighbor Joseph Tion for help and the latter
responded. Joseph treated the wounds of Pedro and asked what happened. Pedro
allegedly told Joseph that Elgin asked to be brought to Hanopolan, Claveria,
Misamis Oriental. On their way, Elgin told Pedro to stop because he wanted to
answer the call of nature. After Elgin relieved himself, instead of boarding at the
back of the motorcycle, he stabbed Pedro and escaped on board the motorcycle.
When a passenger jeepney passed by, Pedro was loaded and brought to Claveria
Hospital. When they passed by a police station, the conductor of the passenger
jeep reported the stabbing incident. At Claveria Hospital, Pedros wound was
treated and sutured. However, due to inadequate medical facilities at Claveria
Hospital, the doctor thereat advised Gina Payla, wife of Pedro, to bring Pedro to
Cagayan de Oro. On that same night, Pedro Payla was brought to [the] Medical
Center in Cagayan De Oro City. Pedro died on October 30, 1995.
On October 30, 1995, at around 9:00 oclock in the morning, Gina Payla, Pedros
wife, was able to converse with him. Again, Pedro pointed to appellant as his
assailant and further narrated the circumstances surrounding his stabbing.
At around 1:00 oclock in the afternoon of the same day, SPO1 Victorino Busalla
arrived at the hospital and then proceeded to take the ante-mortem statement of
Pedro. Pedro could not write because of his injuries; hence, he placed his thumb
mark using his own blood in lieu of his signature on the said statement. The same
statement was signed by Gina Payla who was present when the statement was
taken. Pedro died on the same day.
The motorcycle driven by Pedro with Chassis No. 951-50025, color blue, was
originally owned by Rodrigo Estrada. He later sold the same to [Kagawad Verano]
Caabay for P10,000.00. It was [Kagawad] Caabay who had an arrangement with
Pedro regarding the use of the motorcycle to transport passengers.
The motorcycle was recovered only on November 4, 1995, already cannibalized, at
Cugman, Cagayan de Oro City.
After the prosecution rested its case on June 21, 2002, appellant escaped from
prison which is evidenced by a Notice of Escape submitted to the court a quo. He
has remained at large.[6] (Citations omitted)
Version of the Defense
In its Brief, the defense averred that the accused had escaped from jail after
the presentation of the prosecutions evidence[7] and therefore failed to testify.
Ruling of the Trial Court
 The RTC found appellant guilty beyond reasonable doubt of carnapping with
homicide. Held as part of the res gestae were Pedro Paylas statements uttered
before his death to his wife, Gina; and to Prosecution Witnesses Joseph Tion and
Vicenta Cordino that it was appellant who had stabbed him. His Statement taken by
a police officer a day after the incident and on the same day he died, was admitted
by the court a quo as a dying declaration. It admitted these pieces of prosecution
evidence as exceptions to the hearsay rule.
The lower court also ruled that circumstantial evidence indicated that
appellant was responsible for the disappearance of the motorcycle.
Further, the RTC upheld Joseph Tions testimony that on the pretext of
wanting to answer the call of nature, the accused had asked Payla to stop the
motorcycle and, without any warning or provocation, stabbed the latter on the back.
Finding treachery to have qualified the killing, the lower court imposed on the
accused the supreme penalty of death.
Hence, this automatic review.[8]
The Issues
In his 7-page Brief, appellant raises this lone error for our consideration:
The trial court gravely erred in imposing the penalty of death upon the accused-
appellant when x x x treachery was not alleged in the Information either as [a]
qualifying or as a generic aggravating circumstance.[9]
In addition to the issue raised by appellant, we find it proper to review first his
conviction for carnapping with homicide, as well as the civil liabilities imposed
therefor. Since an appeal in a criminal action opens the whole case for review, it
becomes the duty of this Court to correct any error in the appealed judgment,
whether it has been assigned or not.[10]
The Courts Ruling
The appeal is partly meritorious. Appellant is guilty of homicide only, not
carnapping with homicide.
First Issue:
Culpability of the Accused
In every criminal conviction, the prosecution is required to prove two things
beyond reasonable doubt: first, the fact of the commission of the crime charged, or
the presence of all the elements of the offense; and second, the fact that the
accused was the perpetrator of the crime.[11]
Elements of Carnapping
with Homicide
The charge filed against appellant for which he was convicted -- carnapping
with homicide -- is punishable under Section 2, in relation to Section 14 of RA
6539[12] as amended by RA 7659.[13] Under Section 2 of RA 6539, carnapping is the
taking, with intent to gain, of a motor vehicle belonging to another without the latters
consent; or by means of violence against or intimidation of persons; or with the use
of force upon things. On the other hand, Section 14 of the same act, as amended
by RA 7659, provides:
SEC. 14. Penalty for Carnapping. --- Any person who is found guilty of carnapping,
as this term is defined in Section Two of this Act, shall, irrespective of the value of
the motor vehicle taken, be punished by imprisonment for not less than fourteen
years and eight months and not more than seventeen years and four months, when
the carnapping is committed without violence or intimidation of persons, or force
upon things, and by imprisonment for not less than seventeen years and four
months and not more than thirty years, when the carnapping is committed by
means of violence against or intimidation of any person, or force upon things; and
the penalty of reclusion perpetua to death shall be imposed when the owner, driver
or occupant of the carnapped motor vehicle is killed or raped in the course of the
commission of the carnapping or on the occasion thereof. (Italics supplied)
RA 7659 introduced three amendments to the last clause of Section 14:[14] (1)
the change of the penalty from life imprisonment to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase in the commission of the
carnapping to in the course of the commission of the carnapping or on the occasion
thereof.[15]
The Court has held that the third amendment clarifies the intention of the law
to make the offense a special complex crime, in the same way that robbery with
violence against or intimidation of persons is treated under paragraphs 1 to 4 of
Article 294 of the Revised Penal Code (RPC).[16] Hence, the prosecution must prove
not only that the essential requisites of carnapping[17] were present; but also that it
was the original criminal design of the culprit, and that the killing was perpetrated in
the course of the commission of the carnapping or on the occasion thereof. [18] In the
present case, the prosecution had the burden of proving that 1) appellant took the
motorcycle; 2) his original criminal design was carnapping; 3) he killed Payla; and
4) the killing was perpetrated in the course of the commission of the carnapping or
on the occasion thereof.
It is undisputed that the motorcycle driven by Payla had been taken without
his consent on October 29, 1995, and recovered days later in a cannibalized
condition. The elements of taking and intent to gain were thus established. The
prosecution also proved it was appellant who had killed him. It failed, however, to
discharge its burden of proving the two other requisites of carnapping.
Insufficiency of Proof
of Carnapping
The trial courts finding was that there was indeed no direct evidence showing
that appellant had taken the motorcycle driven by Payla.[19] The culpability of the
former was deduced from the following pieces of circumstantial evidence: 1) the
motorcycle was left with him after Payla had run for his life; 2) as shown by the
police blotter, the stabbing and carnapping incident was immediately reported to the
police; 3) the vehicle was recovered, its parts missing, five days after the accused
had been arrested on June 2, 1997 in Cugman, Cagayan de Oro City, which was
only about 25 kilometers from the scene of the crime; and 4) the accused escaped
while in detention at the provincial jail, 33 days after the prosecution had rested its
case.
To be sufficient for a conviction, circumstantial evidence must prove that (1)
there is more than one circumstance; (2) the facts from which the inferences are
derived have been established; and (3) the combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt.[20] The pieces of
circumstantial evidence must also constitute an unbroken chain leading to one fair
and reasonable conclusion: that the accused, to the exclusion of all others, is the
guilty person.[21]
The circumstantial evidence in the instant case is not sufficient to show that
appellant is guilty of carnapping. On the contrary, the records and the transcripts of
stenographic notes of the proceedings cast doubt on the correctness of the trial
courts conclusion that after stabbing Payla, he fled on board the motorcycle or was
the last person seen with it.
First, there is no mention in the purported antemortem Statement [22] of Payla
or in his statement to his wife and the other prosecution witnesses that appellant
carnapped his motorcycle. Payla merely stated that appellant had stabbed him
twice in the back and once in the face. In fact, the former did not know why he had
been stabbed, as he said in response to a query from his wife [23] and from Joseph
Tion.[24] If appellant had wanted to carnap the motorcyle, Payla would have pointed
this out as the reason for the attack. Yet, the records show that the former intended
only to kill the latter. Tion testified as follows:
PROS. B. APEPE: x x x
Q So after Pedro Payla told you that he was stabbed at the back twice
by Elgin Latayada, what else happened according to Pedro Payla,
if any?
A After he was stabbed twice, he asked Elgin what is this now and Elgin
Latayada answered that [D]ont ask questions anymore, this is killing
already[] and after that, Elgin stabbed him (Pedro Payla) on his left
cheek (witness pointing to portion of his left cheek below the ear) and
Pedro Payla ran away leaving his motorcycle behind.
Q Where did Payla go x x x when he ran away?
ATTY BAGABUYO:
We object, your Honor.
COURT:
On what ground?
ATTY. BAGABUYO:
He just ran away.
COURT: (to the witness)
Q Did he tell you where he ran away to?
A Yes, your Honor, to the house of Mrs. Condino.
PROS. B. APEPE:
Q Did he tell you where was Elgin Latayada after he ran towards the
direction of the house of Mrs. Condino?
A No, sir, Elgin Latayada followed him (P. Payla) about 30 meters from
where the motorcycle was and after that distance, I dont know
anymore where Elgin Latayada proceeded.[25]
On the other hand, Gina Payla testified in this wise:
Q When your husband told you that it was Elgin Latayada who stabbed
him, did you ask him why?
A Yes, sir, I asked my husband why x x x Elgin Latayada stabbed him
and he answered [I] do not know why he stabbed me[] and I told
him maybe you have a misunderstanding with him and he told me
they have no misunderstanding. In fact my husband and Elgin
Latayada are schoolmates before and in fact they are also barkada
or friend[s]. x x x [T]hat time, Elgin requested him to bring him to
Hinopolan but my husband told him []No Gaw, I cannot bring you
there because I am going to go home[] but Elgin insisted to bring
him to that place and he will pay P30.00. [M]y husband agreed and
when they were in the isolated place just before the house of
Condino, Elgin told my husband Gaw, stop the motor because I am
going to urinate so my husband stopped the motor[cycle]. When
Elgin rode at the back of the motorcycle], Elgin tapped the back of
my husband (witness demonstrating by placing her two hands on
her back just below the shoulder) and when my husband started
the motor[cy]cle, put more gas on the engine, right there and then
Elgin stabbed my husband (witness pointing to her back right
below his left shoulder) and after that he pulled out the knife and
again stabbed him (witness pointing to her back just below her
right back) and my husband said What is this Gaw, is this killing
already? and Elgin answered Yes, Gaw, accept your last
moment and after that he was about to stab my husband x x x
(witness pointing to the left side of her n[e]ck) but my husband was
able to crouch and that is why he was hit on the left cheek and he
was able to run towards the house of Condino.[26] (Italics supplied)
Second, still according to Tions testimony, appellant followed Payla for about
30 meters from where the motorcycle stood, then stabbed the latter, who then ran
to Vicenta Condinos house for help. [27] There is no evidence showing that appellant
went back to take the motorcycle; hence, there is no basis for concluding that he
stole it. On cross-examination, Tion wavered on whether it was his neighbor --
herein appellant -- whom he had seen with the motorcycle when the former tried to
retrieve it. It is likewise unclear from the testimony of Tion whether the motorcycle
was already missing at the time. He further testified thus:
ATTY. R. BAGABUYO: (x x x)
Q You stated here in this affidavit that you went to where the motorcycle
was driven by Pedro Payla to use the same in transporting Pedro
Payla to the hospital?
A Yes, sir.
Q And were you alone in going there?
A Yes, sir.
Q And you saw the motorcycle driven by Pedro Payla, is it not?
A No, sir.
Q When you said, sa diha ako na unta kuhaon ang Motor nga gimaniho
ni Pedro, aron maoy among sakyan paingon sa hospital, naa may
tawo nga nagsandig sa motor ug nag tanao kanamo nga
nagpaingon dito sa motor . . . , which x x x in English means, when
I was about to get the motorcycle driven by Pedro for the purpose
of using it in transporting him (Pedro) to the hospital, I saw a
person standing by the motorcycle[,] he was looking at us. What do
you mean by that?
COURT: (to the witness)
Q Before that, which is which, you told the Court just now in your last
answer that the motorcycle was not already there, you did not find
the motorcycle there, but in your affidavit, you said the motorcycle
was there and there was somebody standing near the motorcycle,
which is which, which is correct? What is your answer?
A What happened, sir, was that as we were about to go to that direction,
we met on the way some people and we were not sure if these
were the ones who stabbed [Payla], so we were reluctant to
proceed, thats why we did not go anymore.
Q When you say we, whom are you referring to, who was with you when
you were on the way to go there?
A The members of Mrs. Condinos household particularly her
grandchildren and children.
Q How many were you who went there on the way?
A There were 4 or 5 of us, I was not so sure because they were only
following me.
Q Did you not say a while ago that you were alone when you went to the
motorcycle, you went by yourself?
A Actually, it was I who suggested to go to where the motorcycle was, I
went ahead and they followed. x x x I believe it was only their
apprehension as to what will happen to me thats why they
followed.
Q You told the Court that you asked Pedro Payla when you arrived at
the Condinos house or residence, you asked Pedro Payla several
times who stabbed him. [And] several times he answered, he told
you that it was Elgin Latayada, you remember telling the Court
then?
A Yes, sir.
Q And you also told the Court that even before that date you already
knew Elgin Latayada for a long time because, in fact, you were
neighbors, is not that correct?
A Yes, sir.
Q Alright, those people whom you met, by the way, you said you met
some people when you were on the way to where the motorcycle
was, how many were they whom you met on the way?
A Only one (1), sir.
Q This person whom you met on the way was not Elgin Latayada?
A It was not Elgin Latayada.
Q And yet, youre telling the Court that you were somewhat reluctant or
worr[ied] to proceed farther because that person you met might
have been the one x x x responsible, and yet you told the Court
that what Pedro Payla told you that it was Elgin Latayada and the
person you met was not Elgin Latayada, how come? Explain to the
Court why did you think that probably this was the person thats
responsible when Pedro Payla already told you that it was Elgin
Latayada and this person you met was not Elgin Latayada? You
explain to the Court.
A Actually, it did not enter my mind whether that person I met was the
one responsible or the perpetrator in Pedro Paylas wounding, that
did not enter my mind.
Q [W]hen you first testified on that particular point you said there were
people you met thats why the question now did you not tell the
Court a while ago that you were reluctant to go any farther
because those might be the persons?
PROS. B. APEPE:
He said he met only one (1) person.
Q Alright, let me clarify that point. Earlier on you said on the way to the
motorcycle you met some people then later on x x x, you said there
was only one person you met on the way, which statement is
correct, your statement that you met some people or your latest
statement that there was only one?
A I only met one person, sir. [I]n fact, when we pass[ed], he was at a
distance and I could not clearly see who he was.
Q So, in effect, you are correcting what you said earlier that there were
some people you met because actually, there was only one person
you met?
A Yes, sir.
Q And you said just now that that person is somewhat at a distance, you
could not recognize really who he was, that is what you said just
now, is it not correct?
A Yes, sir.
Q Did you not tell the Court when I was asking you earlier, [and] that you
sounded to be quite sure, that that person you met was not Elgin
Latayada, you told the Court that earlier, isnt it?
A Yes, sir.
Q Now you are telling the Court that you cannot clearly see or identify
and yet you told the Court earlier that that was not Elgin Latayada?
PROS. B. APEPE:
What he said, Your Honor, was they did not actually meet each
other.
COURT:
Q Yes, you said that you saw the person only from a distance thats why
you could not clearly see or identify who he was but earlier you told
the Court that the one you met was not Elgin Latayada? You try to
explain to the Court.
A It was only my assumption. I based it on his physical appearance,
built, the way he carr[ied] himself, the way he walk[ed] and I
thought that this is not Elgin Latayada by the way he walk[ed].
Q Alright, proceed counsel. You have more questions?
ATTY. R. BAGABUYO:
Yes, Your Honor, based on this question and answer.
Q Now, you said you met not many but one [person] on your way to the
motorcycle, is that correct?
A Yes, sir.
Q And therefore, the person you met was not going to that motorcycle
but away from the motorcycle, correct?
A He was going up, sir.
Q In your affidavit on paragraph 6, you said you saw a person standing
by the motorcycle. Kindly look again at your affidavit?
A No, sir, this is not correct. We were on our way to the motorcycle when
we met that person.
Q Is it not a fact that before I [had] this Affidavit marked, x x x I allowed
you to read it and after reading it, I asked you whether you are
going to affirm and confirm the statement in the affidavit?
A This portion was not very clear to me (witness referring to 1-B).
Q Is it not also a fact that you x x x mentioned that you read that affidavit
before you affixed your signature?
A Yes, sir.
 Q At the time x x x you read the affidavit, you read the entire contents of
this affidavit marked now as Exhibit 1, is it not?
A Yes, sir.
Q And at that time, you found the Question and Answer on paragraph 6
to be true and correct, is it not?
A Yes, sir.
Q Now, you are saying that that is not correct, is that what you are
saying?
A No, sir, the policeman who was taking this affidavit did not get me
correctly upon my statement here, maybe the policeman based this
[on] the statement of Mrs. Condino x x x that her grandchildren
went to the place where the motorcycle was[. B]ut actually, I did not
go to where the motorcycle was[. Maybe] this statement here was
based by the policeman who made this affidavit on what Mrs.
Condino told them.
Q But at the time when you read this one you did not tell the policeman
that that is not correct, is it not?
A I did not, sir.
Q As a matter of fact, you did not tell anybody until now that that is not
correct?
A Yes, sir.
Q What is the truth that you did not even attempt to go to where the
motorcycle was, is that the truth?
A The truth is that we tried to go to where the motorcycle was but we
were only 10 meters away from the house of the Condinos.
Q And what made you decide not to proceed?
COURT:
He already explain[ed] that.[28] (Italics supplied)
On whether the stabbing and carnapping incident was immediately reported to
the police, suffice it to state that entries in the police blotter should not be given
undue significance or probative value, for these are normally incomplete and
inaccurate.[29] This dictum applies to the present case with greater force, because
the report was made by a truck conductor [30] who was a complete stranger to the
incident.
As the carnapping by appellant was not proved beyond reasonable doubt, it
cannot be said that the killing of Payla was an incident thereof, or that it was
committed in the course of the carnapping or on the occasion thereof. The
provisions of the Anti-Carnapping Act are therefore inapplicable. The killing of Payla
is punishable under the Revised Penal Code, either as homicide or as murder.[31]
Proof of Homicide Sufficient
We now go to the issue of the culpability of appellant for the killing of Payla. In
his Comment[32] to the prosecutions Formal Offer of Exhibits, the former questioned
the admissibility of the latters alleged antemortem Statement or dying declaration,
which had been taken by SPO1 Victorino Q. Busalla. Asking the RTC to disregard
the Statement, appellant pointed out that when it was made, Payla was unaware of
his impending death. He also averred that on it appeared a thumbprint that
allegedly belonged to Payla, but that has not been authenticated.
A dying declaration pertains to ones statement, made under a consciousness
of impending death,[33] on the cause and the surrounding circumstances thereof. It
is given credence on the premise that no one who knows of ones impending death
will make a careless and false accusation.[34]
For a dying declaration to be admissible in evidence, it must be shown that 1)
death was imminent and the declarant was conscious of that fact; 2) the declaration
refers to the cause and the surrounding circumstances of the death; 3) the
declaration relates to facts that the victim was competent to testify on; 4) the
declarant thereafter died; and 5) the declaration is being offered in a criminal case
in which the declarants death is the subject of inquiry.[35]
True, Payla made no express statement showing that he was conscious of his
impending death. The law, however, does not require the declarant to state
explicitly a perception of the inevitability of death.[36] The foreboding may be
gleaned from surrounding circumstances, such as the nature of the declarants
injury and conduct that would justify a conclusion that there was consciousness of
impending death.[37]
In this case, Payla could not talk when his wife arrived at the municipal
hospital where he had first been brought. [38] He kept moaning in pain and bleeding
profusely from the stab wounds on his back, while he was being transported to the
medical center in Cagayan de Oro City. [39] Within minutes after arriving there, he
lost consciousness[40] as a result of one of the stab wounds that penetrated his
lungs.[41] On the morning before he died, in his wifes presence he lamented that he
could no longer raise his children as a result of his condition. [42] He died about eight
hours after executing his written Statement before SPOI Busalla.[43]
There is no merit in the averment that the thumbmark of the victim, imprinted
on his Statement with his own blood, has not been authenticated. His wife, Gina,
testified that he could not sign the Statement because of the wound on his back
below his right shoulder.[44] Thus, SPO1 Busalla held the hand of her husband and
imprinted the latters thumbmark on the Statement,[45] which she signed [46] as a
witness.
Her testimony was corroborated by SPO1 Busalla. As the police officer [47] who
had taken the Statement of the victim, the former identified the thumbprint
appearing thereon as the latters.[48] Further testifying that Payla could no longer
move his hand to sign the Statement, SPO1 Busalla allegedly placed the formers
right thumbprint on it, using as ink the blood drawn from the left side of the victims
face.[49]
In the light of these circumstances, the trial court did not err in admitting
Paylas antemortem Statement.
Res Gestae
No error was committed, either, when the trial court admitted the testimonies
of Gina, Vicente Condino and Joseph Tion on the declaration of Payla that it was
appellant who stabbed him. The utterances separately made by the victim to each
of the witnesses were correctly appreciated as part of the res gestae, since they
had been made immediately after a startling occurrence[50] and had complied with
the following requirements: 1) the statements were spontaneous; 2) they were
made immediately before, during and after the startling occurrence; and 3) they
related the circumstances thereof.[51]
Most telling was the declaration made by Payla within minutes after the
stabbing, and while he was calling for Vicenta Condino to ask for help. Condino
testified thus:
ATTY. I. LICO: x x x
Q Your residence is [in] what barangay?
A Anopolan.
Q What town?
A Claveria.
Q Do you own the house where you are living?
A Yes, sir.
Q Where were you on October 29, 1995 at about 6:00 oclock in the
afternoon?
A I was in the house.
Q Do you recall if there was an unusual incident that happened at th[at]
time?
A Yes, sir.
Q Kindly relate to the Honorable Court what [was] this unusual incident
that happened on October 29, 1995 at about x x x 6:00 oclock.
A At that time, we were about to take our supper. When I was on the
table, somebody came up to the kitchen and I was afraid because I
did not know him and he told me [D]ont be afraid, Nang, I am the
son of Lucia Payla, I was stabbed by Elgin Latayada and bring me
to the hospital.
Q And then what happened after that?
A I [had] my neighbor Joseph Tion called and when he arrived, I told him
[he] will be the one to bring [Payla] to the municipal hospital and
[to] inform his parents because I am old, I cannot manage
anymore.[52] (Italics supplied)
Verily, the utterances of Payla to Condino were instinctively made at a time
when he had no more opportunity to concoct a fabricated version of the startling
event; hence, the words he spoke were credible.[53]
In the same category were the statements uttered by Payla to his wife, Gina;
and to Tion. The transcript of stenographic notes of the proceedings amply shows
that the victim identified appellant as the assailant, and that the former narrated
details of the stabbing to his wife and to Tion shortly after the incident.
Second Issue:
Treachery
Appellant contends that the RTC erred in appreciating treachery, since it was
not alleged as an aggravating circumstance in the Information as required by
Sections 8 and 9 of the Revised Rules of Court. [54] He argues that the maximum
penalty that may be imposed on him is reclusion perpetua, not death. The OSG
agrees with his submission.
We sustain their position that treachery should not have been considered by
the court a quo. Sections 8 and 9 of Rule 110 of the Revised Rules of Court require
that the complaint or information shall state, among others, the qualifying and
aggravating circumstances as follows:
SEC. 8. Designation of the offense. - The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.
SEC. 9. Cause of the accusation. - The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily those in the language
used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment. (Italics
supplied)
Indeed, a perusal of the Information in this case readily reveals that treachery
was not alleged as an aggravating or a qualifying circumstance in the commission
of the crime charged. Consistent with the new Rules, treachery may not be
appreciated, because it was not alleged in the Information.[55] It is settled that
procedural rules are applicable to actions pending and undetermined at the time
they were approved, especially when they are more favorable to the accused.[56] In
the absence of any qualifying circumstance, appellant may be convicted of
homicide only.
Third Issue:
Penalty and Indemnity
Under Article 249 of the Revised Penal Code, the imposable penalty for
homicide is reclusion temporal, the range of which is 12 years and 1 day to 20
years. Since appellant escaped from confinement after the prosecution had rested,
the Indeterminate Sentence Law is not applicable.[57] There being no aggravating or
mitigating circumstances, he should be sentenced to reclusion temporal in its
medium period.[58]
As to his civil liability, prevailing jurisprudence imposes the amount of P50,000
as indemnity ex delicto for homicide.[59] The award of actual damages in the form of
hospitalization and burial expenses, which were adequately proved by receipts,[60] is
affirmed. Being adequately supported by the evidence on record, the grant of moral
damages in the amount of P50,000 is also affirmed.
In addition, the heirs of the victim must also be indemnified for loss of earning
capacity of the deceased.[61] The widow, Gina, testified that her husbands net daily
income was P250.[62]She also testified that they had three children,[63] and that the
deceased was 27 years old at the time of his death. [64] The loss of earning capacity
is thus computed as follows:[65]
Net earning capacity = life expectancy[66] x (gross annual income less
living
expenses[67])
 = 2 ( 80 - 27) x (P90,000[68] - P45,000)
3
= 35.33 x P45,000
= P1,589,850.00

Effect of Appellants Escape

When an appellant escapes detention pending appeal, the appeal is normally

dismissed, and the lower courts judgment thus becomes final and executory.
[69]
However, this Court has held in People v. Esparas,[70] People v. Prades,
[71]
and People v. Raquino [72] that this rule does not apply to death cases, in which
an automatic review is mandated by law even if appellant has absconded.[73]
WHEREFORE, the appeal is PARTLY GRANTED. The Decision of the
Regional Trial Court of Cagayan de Oro City (Branch 18) in Criminal Case No. 97-
917 is hereby MODIFIED asfollows:
1. Appellant is found GUILTY of HOMICIDE and is sentenced to suffer
imprisonment of 14 years, 8 months and 1 day.
2. Appellant is likewise ordered to pay to the heirs of the deceased the
amount of P50,000 as civil indemnity ex delicto, P26,199 as actual damages,
P50,000 as moral damages, and P1 ,589,850 for loss of earning capacity.
No pronouncement as to costs.
SO ORDERED.

SECOND DIVISION
THE PEOPLE OF THE PHILIPPINES, G.R. No. 177147
Appellee, [Formerly G.R. No. 147313]
Present:
SANDOVAL-GUTIERREZ,*
- versus - CARPIO,**
CARPIO MORALES,
TINGA, and
JOEMARIE CERILLA, VELASCO, JR., JJ.
Appellant.
Promulgated:
November 28, 2007
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
For automatic review is the Decision[1] of the Court of Appeals[2] dated 26
October 2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification the
Decision[3] of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15
August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty
beyond reasonable doubt of the crime of murder and sentencing him to suffer the
penalty of reclusion perpetua.
On 6 July 1998, an Information was filed against appellant charging him of
the crime of murder committed as follows:
That on or about April 24, 1998, in the Municipality of
Leganes, Province of Iloilo, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, armed with a
firearm with deliberate intent and decided purpose to kill and by
means of treachery, did then and there willfully, unlawfully and
feloniously shoot Alexander Parreo with the firearm which the
accused was then provided, hitting and inflicting pellet wound at
the right back portion of his body which caused his death.
CONTRARY TO LAW.[4]
The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the
victim, Alexander Parreo (Alexander), his 14-year old daughter, Michelle, and
neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They were
cordially welcomed and entertained by appellant and his wife.[5] An hour later, a
blackout occurred. At this time, Alexander sought permission from the couple to
leave, which the latter acknowledged.[6] On their way home, Michelle was walking
ahead of Alexander with the latter closely following his daughter. Suddenly, after
walking for about 100 meters
from appellants house, Michelle heard an explosion. Michelle immediately turned
her back and saw appellant pointing a gun at Alexander who, at that moment, was
staggering towards her.[7] Sendin, who was also with Alexander and Michelle, did
not look back but instead ran away and proceeded to the house of Mrs. Parreo.
[8]
Meanwhile, Michelle was cuddling Alexander beside the road when the latter
repeatedly told her that it was appellant who shot him.[9] Twenty minutes later,
Alexanders other daughter, Novie Mae, arrived; she was also told by Alexander at
that moment that it was appellant who shot him.[10]
SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the
crime scene and helped carry Alexander to an ambulance. SPO3 Dequito was able
to ask Alexander who shot him to which he answered Pato. Pato is an alias by
which appellant is known.[11]
Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that
it was appellant who shot him.[12] Alexander died the following day.[13]
Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an
autopsy on the body of Alexander. The autopsy report stated the cause of death to
be hemorrhage secondary to pellet wounds.[14] Testifying on his report, Dr. Doromal
explained that Alexander died from a gunshot wound which penetrated the ribs and
lacerated the right lobe of the liver, colon, stomach, duodenum, and right
kidney. The entrance wound was located at the middle-back portion of the
body. Seven (7) pellets were recovered on the muscle of the upper and middle
abdominal wall.[15]
The defenses evidence consists of the testimonies of appellant himself and of his
wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto
Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his main
defense. He claimed that Alexander, together with his daughter and Sendin, had
gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed
and offered snacks.[16] They were having a conversation when a blackout
occurred. Alexander then asked permission to leave.After the visitors had left,
appellant ordered his stepdaughter Franlin to buy candle at the store across their
house. Appellant and Madoline posted themselves at their doorway holding a
flashlight to light Franlins path. Upon Franlins return to the house, appellant heard
an explosion and he immediately closed the door. Later, the policemen
went to his house and told him that he was a suspect in the shooting of Alexander
and was then brought to the police station. [17] The following day, he was subjected
to paraffin test the result of which turned out to be negative.[18]
Appellants testimony was corroborated by Madoline and Franlin. PO1
Javelora declared that when he asked Alexander who shot him, the latter did not
answer.[19]Likewise, PO3 Sarmiento and Allona stated that when they went to the
hospital to interrogate Alexander, the latter could not give a definite answer as to
who shot him.[20]
On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of
murder and sentenced him to suffer the penalty of reclusion perpetua. The
dispositive portion of the decision read:
WHEREFORE, premises considered, and in the light of
the facts obtaining and the jurisprudence aforecited, judgement is
hereby rendered finding the accused GUILTY beyond reasonable
doubt of the crime of MURDER, hereby sentencing the said
accused to the penalty of RECLUSION PERPETUA pursuant to
Sec. 6 of Republic Act No. 7659[,] amending Article 248 of the
Revised Penal Code. The said accused is further condemned to
indemnify the surviving heirs of the deceased, Alexander Parreo,
the sum of P257,774.75 by way of actual damages; the amount
of P30,000.00 by way of moral damages and the sum
of P50,000.00 by way of death compensation. The accused who
is detained is entitled to be credited in full with the entire period of
his preventive detention. The Jail
Warden, Iloilo Rehabilitation Center is ordered to remit the said
accused to the National Penitentiary at the earliest opportunity.
SO ORDERED.[21]
The trial court regarded the victims dying declaration as the most telling evidence
pointing to appellant as the assailant.[22] It appreciated the presence of treachery in
qualifying the crime to murder because the victim was unarmed and walking on his
way
home when he was suddenly and unexpectedly shot from behind by appellant.
[23]
The trial court ruled that appellants alibi and denial could not prevail over the
positive testimonies of credible witnesses.[24] Moreover, it observed that appellant
was not able to prove the impossibility of his presence at the crime scene which
could have proven his alibi.[25]
In view of the penalty of reclusion perpetua imposed on appellant, the
case was initially elevated to this Court for review. However, pursuant to our ruling
in People v. Mateo,[26] the case was referred to the Court of Appeals.
The appellate court affirmed the trial courts ruling but modified the award of moral
damages from Thirty Thousand Pesos to Fifty Thousand Pesos. [27] Hence, the
instant appeal.
In a Resolution dated 16 July 2007, the Court required the parties to
simultaneously submit their respective supplemental briefs if they so desired.
[28]
Both parties manifested that they would adopt their briefs filed before the
appellate court.[29] Thereafter, the case was deemed submitted for decision.
Appellant argues that the trial court erred in giving full credence to the testimony of
the prosecution's eyewitness, Michelle, as well as the dying declaration of
Alexander considering that the circumstances under which the crime was
committed rendered the identification of the gunman impossible.
This argument essentially challenges the credibility of the witnesses, including the
eyewitness, whose testimonies were relied upon by the trial court in convicting
appellant. Basic is the principle that the findings of fact of a trial court, its calibration
of the testimonies of the witnesses and its assessment of the probative weight
thereof, as well as its conclusions anchored on said findings are accorded high
respect, if not conclusive effect. This is because the trial court has the unique
opportunity to observe the demeanor of a witness and is in the best position to
discern whether they are telling the truth. This rule holds true especially when the
trial court's findings have been affirmed by the appellate court.[30]
Appellants authorship of the crime was proven by the positive identification of an
eyewitness and the victims dying declaration.
The prosecution presented Michelle, who categorically identified appellant as the
one who shot Alexander, viz:
Q: While you and your father were walking towards home, did
you remember anything unusual that happened?
A: Yes, Maam.
Q: What was that?
A: I heard an explosion.
Q: Where were you in relation to your father when you heard that
shot?
A: I was in front of my Daddy and he was at my back.
Q: You said you heard a shot, what did you do when you heard a
shot?
A: When I heard the shot, I turned back and I saw Joemarie
pointing to my Dad.
COURT:
Q: What did he point towards your Dad?
A: Firearm.
PROSECUTOR PADILLA:
Q: You said Joemarie was pointing a firearm to your father. Was
it [a] long or short firearm?
A: About 11 inches.

Q: After you saw Joemarie pointing a firearm to your father, what
happened next?
A: I saw my father staggering towards me and I saw Joemarie
Cerilla ran.
Q: Where was he going?
A: Maybe towards his house.[31]
xxxx
Q: If this Joemarie Cerilla is inside the Courtroom, can you
identify him?
A: Yes, Maam.
Q: Please point to him. (Witness pointing to the accused
Joemarie Cerilla).[32]
Michelles account of how her father was shot by appellant was corroborated by the
post-mortem examination which reveals that the entrance wound is located at the
back of the victim.[33] In the same vein, the medico-legal expert concluded that the
gunshot was fired at a close range, as evidenced by the presence of a power burn
measuring four (4) centimeters in diameter surrounding the periphery of the
wound [34] and penetrating his internal organs.[35]
Significantly, the eyewitnesss positive identification of appellant as the
perpetrator of the crime is fully supported the victims dying declaration.
A dying declaration is a statement made by the victim of homicide,
referring to the material facts which concern the cause and circumstances of the
killing and which is uttered under a fixed belief that death is impending and is
certain to follow immediately, or in a very short time, without an opportunity of
retraction and in the absence of all hopes of recovery. In other words, it is a
statement made by a person after a mortal wound has been inflicted, under a belief
that death is certain, stating the facts concerning the cause and circumstances
surrounding his/her death.[36]
As an exception to the rule against hearsay evidence, a dying declaration
or ante mortem statement is evidence of the highest order and is entitled to utmost
credence since no person aware of his
impending death would make a careless and false accusation.[37] It
is thus admissible to provide the identity of the accused and the deceased,
to show thecause of death of the deceased, and
the circumstances under which the assault was made upon him. The reasons
for its admissibility is necessity and
trustworthiness. Necessity, because the declarants death renders it impossible his
taking the witness stand, and it often happens that there is no other equally
satisfactory proof of the crime; allowing it, therefore, prevents a failure of
justice. And trustworthiness, because the declaration is made in extremity, when
the party is at the point of death and when every motive to falsehood is silenced
and the mind is induced by the most powerful considerations to speak the truth.
The law considers the point of death as a situation so solemn and awful as creating
an obligation equal to that which is imposed by an oath administered in court.[38]
Of the doctrines that authorize the admission of special classes of
hearsay, the doctrine relating to dying declarations is the most mystical in its theory
and, traditionally, among the most arbitrary in its limitations. In the United States,
the notion of the special likelihood of truthfulness of deathbed statements was
widespread long before the recognition of a general rule against hearsay in the
early 1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find
an exception for dying declarations.[39]
Four requisites must concur in order that a dying declaration may be
admissible, thus: first, the declaration must concern the cause and surrounding
circumstances of the declarant's death. This refers not only to the facts of the
assault itself, but also to matters both before and after the assault having a direct
causal connection with it. Statements involving the nature of the declarants injury or
the cause of death; those imparting deliberation and willfulness in the attack,
indicating the reason or motive for the killing; justifying or accusing the accused; or
indicating the absence of cause for the act are admissible. [40] Second, at the time
the declaration was made, the declarant must be under the consciousness of an
impending death. The rule is that, in order to make a dying declaration admissible,
a fixed belief in inevitable and imminent death must be entered by the declarant. It
is the belief in impending death and not the rapid succession of death in point of
fact that renders the dying declaration admissible. It is not necessary that the
approaching death be presaged by the personal feelings of the deceased. The test
is whether the declarant has abandoned all hopes of survival and looked on death
as certainly impending.[41] Third, the declarant is competent as a witness. The rule
is that where the declarant would not have been a competent witness had he
survived, the proffered declarations will not be admissible. Accordingly, declarations
made by a child too young to be a competent witness or by a person who was
insane or incapable of understanding his own statements by reason of partial
unconsciousness are not admissible in evidence.[42] Thus, in the absence of
evidence showing that the declarant could not have been competent to be a
witness had he survived, the presumption must be sustained that he would have
been competent.[43] Fourth, the declaration must be offered in a criminal case for
homicide, murder, or parricide, in which the declarant is the victim. [44] Anent this
requisite, the same deserves no further elaboration as, in fact, the prosecution had
caused its witnesses to take the stand and testify in open court on the substance of
Alexanders ante mortem statement in the present criminal case for murder.
The victim communicated his ante-mortem statement to three persons
who testified with unanimity that they had been told by the victim himself that it was
appellant who shot him. Michelle recounted:
Q: You said your father moved towards you, what happened
next?
A: I approached my father and cuddled him.
Q: What happened next?
A: While I was cuddling my father he said, Day, it was Joemarie
who shot me.

Q: How many time he said he was shot?
A: Not once but about 10 times.[45]
Shortly thereafter, Novie Mae arrived and was told by Alexander that it
was appellant who opened fire at him:
Q: When you reached Confessor Street, what happened?
A: I saw that my elder sister was assisting my father.
COURT:
Q: Whats the name of your sister?
A: Michelle.
COURT:
Proceed.
FISCAL:
Q: When you saw your sister Michelle assisting your father, what
[sic] happened next?
A: And I immediately went near my father and asked him who
shot him and he answered it was Joemarie Cerilla who
shot him.
Q: Before you reached your father, did you observe his physical
appearance of what happened to him?
A: Yes, Maam, he was supporting with his arm and when I asked
him he still made a response.
Q: You said [that] before you approached your father[,] you saw
him supporting his body, what was his position at that
time?
A: He was in a position of lying with his hand on the road and my
sister was assisting him.
xxx
Q: Were you able to observe why your father was sitting on the
ground and supporting himself not to fall.
A: Yes, Maam.
Q: Why, [sic] what did you observe?
A: My father was supporting himself in order that blood will not
[ooze] from his body and his body will not fall down.[46]
SPO3 Dequito, who responded immediately to the crime scene,
corroborated the testimonies of the Alexanders children, to wit:
Q: So, what did you do when you arrived at the crime scene?
A: We advised the group to carry Mr. Parreo to the ambulance
because the ambulance was on the way and after our
mobile arrived, the ambulance arrived also [sic] so we
carried Mr. Parreo to be brought to the hospital.
COURT:
Q: Meaning you loaded the victim into the ambulance?
A: Yes, Your Honor.
Q: And after he was loaded, what did you do?
A: Before the ambulance left the area, I questioned the victim
who shot him and he answered Alias Pato. I am
referring to Joemarie Cerilla, the accused.
Q: The accused Cerilla, Alias Pato?
A: Yes, Your Honor.
PROSECUTOR:
Q: Can you remember the exact words uttered by the victim
when you asked him who shot him?
A: He answered me that: I questioned him, Who shot you? and
he answered that it was Cerilla and I further asked him
The husband of Madoline and he answered Yes,
Alias Pato, the husband of Madoline.[47]
Likewise, Alexanders wife, Sonia, testified:
Q: You said from your house when you were told by the girls that
your husband was shot, what did you do?
A: I looked for a taxi and proceeded to the hospital.
xxx
Q: When you arrived at the hospital, where did you go first?
A: To my husband.
xxx
 Q: When you reached that hospital and your own mother led you
to where Alexander was, in what part of the hospital did
you first see him.
A: Outside the operating room.
Q: What was the situation of your husband when you first saw
him?
A: He was leaning on his side and many nurses attending to him
and saying araguy.
xxx
Q: Between you and your husband who spoke first?
A: My husband.
Q: What were the exact words stated by your husband?
A: He told me that it was Joemarie who shot him.[48]
These statements comply with all the requisites of a dying
declaration. First, Alexanders declaration pertains to the identity of the person who
shot him. Second, the fatal quality and extent of the injuries [49] he suffered
underscore the imminence of his death as his condition was so serious that his
demise occurred the following morning after a thirteen (13)-hour operation. Third,
he would have been competent to testify had he survived. Fourth, his dying
declaration is offered in a criminal prosecution for murder where he was the victim.
Other police officers were presented by the defense to refute the dying
declaration. PO1 Javelora alleged that he happened to pass by the crime scene
and saw a young girl crying. The girl led him to her father who was sitting on the
roadside. He asked the victim who shot him but he did not get any reply. [50] PO3
Allona and Sarmiento arrived at the hospital and questioned Alexander as to who
shot him but the latter told them, I am not sure because it was dark. [51] These
statements cannot be construed as a categorical statement of the victim denying
knowledge as to the identity of his assailant. It can be recalled that at the time
Alexander was being questioned, he was already being readied for surgery. At that
point, he was understandably no longer fit to respond to questions. Between these
two seemingly conflicting testimonies, it is the positive identification made by
Alexander in his dying declaration which must be sustained.
Appellant insists that there was an inherent impossibility in identifying the
assailant with clarity since there was a power blackout at the time of the
commission of the crime and was then a moonless night.
The fact that the crime was committed during a blackout does not cast
doubt on Alexanders and Michelles positive identification of appellant. While the
place of occurrence was dark, this did not prevent the Alexander or Michelle from
identifying the assailant, especially since the shot was delivered at close range.
In dismissing appellants contention, the trial court rationalized:
x x x This argument deserves scant consideration. In
the case of People v. Hillado, G.R. No. 122838[,] promulgated on
May 24, 1999[,] citing the case of People v. Oliano, visibility at
nighttime is possible not only at the exact minute and date when
the moon is full as indicated in the calendar. Thus, a persons
nocturnal eyesight, is not necessarily diminished just because
there is no illumination from the moon, because it is a fact that
our eyes can actually adjust to the darkness so that we can still
see objects clearly even without sufficient lighting. In the case at
bar, it would not be so hard for Michelle to identify a persons fact
especially if the latter as in the present case was barely two (2)
arms length away from them which is confirmed by the presence
of gunpowder nitrates on the body of the victim. We stress, that
the normal reaction of the person is to direct his sight towards the
source of a startling [shot] or occurrence. As held in People v.
Dolar, the most natural reaction of the victims in criminal violence
is to strive to see the looks and faces of their assailants and to
observe the manner in which the crime is committed. Added to
this is the fact that the accused Joemarie Cerilla and the victim
Alexander Parreo
have known each other quite well before the incident so that
they became familiar with each others face and physical features.
x x x [52]
Moreover, the prosecution witnesses were not shown to be impelled by ill
motive to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae,
being immediate relatives of the deceased, would naturally be interested in having
the real culprit punished.[53]
The positive identification of appellant must necessarily prevail over his
alibi.[54] It was not physically impossible for appellant to have been present at the
scene of the crime at the time of its commission. The distance of his house, where
he supposedly was, from the locus criminis is only 120-150 meters, more or less.[55]
Appellant counters that there was absence of any motive on his part to kill
the victim; that it was not clearly proven that he fired a gun, based on the paraffin
test; and that he appeared calm and composed and showed no indication of guilt
when he was invited by the police officers shortly after the commission of the crime.
Time and again, we have ruled that a negative finding on paraffin test is
not a conclusive proof that one has not fired a gun because it is possible for a
person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the
culprit washes his hands or wears gloves.[56] The trial court correctly rejected the
result of the paraffin test in light of the positive identification of appellant.
The trial court held that the killing was qualified by treachery because
Alexander, who was unarmed, was suddenly and unexpectedly shot from behind by
appellant without any risk to the latter from any defense which the former might
make. There was no opportunity given to Alexander to repel the assault or offer any
defense of his person.There was not the slightest provocation on his part. [57] We
agree with the findings of the trial court. The presence of treachery was evident in
the execution of the crime. Appellant suddenly, and without warning, shot Alexander
from his back.
Under Article 248 of the Revised Penal Code, as amended by Republic
Act No. 7659, murder is punishable with reclusion perpetua to death. Because the
killing of Alexander, although qualified by treachery, was not attended by any other
aggravating circumstance, the proper imposable penalty is reclusion perpetua.
We deem it proper to further impose exemplary damages in the amount
of P25,000.00 which is recoverable in the presence of an aggravating
circumstance, whether qualifying or ordinary, in the commission of the crime.[58]
WHEREFORE, the Decision of the Court of Appeals dated 26 October
2006, affirming with modification the Regional Trial Court Judgment dated 15
August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of
murder, is AFFIRMED with the MODIFICATION that appellant is further ordered to
pay the heirs of Alexander Parreo P25,000.00 as exemplary damages.
G.R. No. L-26193 January 27, 1981
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
RODULFO SABIO, alias "PAPU", defendant.
MELENCIO-HERRERA, J:
Automatic review of the death penalty imposed upon the accused Rodulfo Sabio
alias "Papu", by the Court of First Instance of Cebu, Branch II, in Criminal Case No.
V-10804 for Robbery with Homicide.
On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao,
Cebu, Catalino Espina, 80-years old, single, owner of a small sari-sari store located
in his house was found on the second floor of his dwelling wounded on the
forehead, from which injury he died three days later.
Prosecution witness JESUSA BIRONDO a fish vendor, testified that at about 5:00
o'clock in the morning of October 5, 1965, as she was preparing to go to the
seashore, she heard a shout for help coming from the house of her neighbor,
Catalino Espina, which was located just across the street from her house. She
recognized the voice as Catalino's. When she looked out of the window she saw
the accused Rodulfo Sabio, who is nicknamed "Papu", coming out of the door of
the store at the victim's house. The accused was wearing a black shirt with sleeves
up to the elbow and dark trousers. She had known the accused since his birth
because his house is located at the seashore in Barrio Looc, just about 40 meters
from her own house, and she is familiar with his appearance because she used to
see him everyday passing by her house or at the seashore. Jesusa felt scared so
she retreated from the window. Then she shouted for help. Shortly thereafter, she
saw from her window that many persons, about 50 to 100 neighbors, went to
Catalino's house. The following day after the incident, or on October 6, 1965,
Jesusa told Police Sergeant Jesus Alberca about what she heard and saw. She
executed a sworn statement on the same date. 1
CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew of the victim, who
had lived with the latter since childhood, left Catalino's house at past 4:00 o'clock in
the early morning of October 5, 1965 to go fishing. At the seashore, he waited for
somebody to help him drag his boat to the sea from the elevated support on which
it was hoisted. The first person he saw was the accused, Rodulfo Sabio, who came
running past him about 6 meters away, towards his (Sabio's) house. The accused
was wearing a black T-shirt with sleeves reaching beyond the elbow and long
"maong" pants. Witness Camilo demonstrated that the accused had his two hands
tucked inside his shirt in front of the stomach while running. Minutes later, a certain
Enok Calledo arrived and told Camilo to go home because his granduncle "Noy
Ino" had cried for help. When Camilo reached home, he saw "Ino" (the victim) lying
wounded upstairs. He was moaning and was able to speak only when bis head was
raised. When Camilo called the victim's name, the latter responded and told Camilo
to fetch a policeman. Calo noticed that the merchandise in the store were in
disarray and the tin can called "barrio, which he knew had contained the cash sales
for Sunday and Monday of about P8.00 because they counted the money the
previous night, was lying empty on the floor. When police officers Paulino Fuentes
and Pedro Burgos arrived, Patrolman Fuentes asked "Manoy Ino" questions which,
together with the answers, he wrote on a page torn from a calendar hanging
somewhere in the room. 2 Patrolman Fuentes then instructed Camilo to take the
victim to the town dispensary at Argao, Cebu, where he was treated. But because
the victim's condition was considered serious he was immediately transferred to the
Southern Islands Hospital where he died three days later. 3
PAULINO FUENTES, a policeman assigned at the municipal building of Argao,
Cebu, received a report at about 5:30 o'clock in the morning of October 5, 1965,
that Ino Espina was hacked in barrio Looc He and another policeman, Pedro
Burgos, proceeded to the victim's house where he saw the latter lying on the floor,
wounded and bleeding on the forehead. Patrolman Fuentes asked the victim who
had hacked him and the latter answered that it was "Papu" Sabio, son of Menes
According to said Patrolman, the person referred to was the accused, who, as well
as his parents, have been known to the witness for the past three years. Patrolman
Fuentes asked the victim why "Papu" hacked him and the latter answered that
"Papu" had demanded money from him. Patrolman Fuentes also asked the victim
how much money he had lost but the latter was not able to answer that question.
Sensing that the wound was serious since it was bleeding profusely Patrolman
Fuentes decided to take down the statement of the victim. He detached a leaf from
a calendar and wrote down on it the questions he propounded as well as the
answers of the victim. He then had it thumbmarked by the victim with the latter's
own blood as no ink was available. Present at the time were Pedro Burgos, another
police officer, and Camilo Semilla, the grandnephew. Patrolman Fuentes himself
and Pedro Burgos signed as witnesses.
Reproduced hereunder in full is the said statement: Q — From where are you?

Antemortem A — From Look, Argao, Cebu.

P — Kinsa may ngalan nimo. Q — Who slashed you and robbed you?

T — Catalino Espina A — Rodulfo Sabio (Papu) the son of Menez

from Look
P — Taga diin man ikao.
Q — If you will die, who is responsible for your
T — Taga Looc, Argao, Cebu death?

P — Kinsa may nag tikbas kanimo kon nagtulis A — Only Papu Sabio is responsible for my
kanimo death.

T — Si Rudolfo (Pafo) Sabyo nga anak ni Q — Are you going to sign this or affix your
Menez nga taga Looc. fingerprint?

P — Kon ikao mamatay kinsa may responsabli A — Yes.

sa imong kamatayan.
Brownish finge
T — Si Pafo Sabyo ro gayod ang responsabli
sa akong kamatayon mark and acro

P — Imo ba kining permahan o tamlaan sa written the wo

imong todlo?
CATALINO ES
T — Oo
Wit:
Catalino Espina
1. (Sgd.) Paulino Fuentes
(Thumbmarked)
2. (Sgd.) Pedro Burgos 5
Wit:
Thereafter, Patrolman Fuentes advised Camilo Semilla to bring the victim to the
1. (Sgd.) Paulino Fuentes hospital. Patrolman Fuentes observed that the things of Catalino and the store
items like canned sardines were all in disarray while the tin can ("barro") was
2. (Sgd.) Pedro Burgos 4 already opened. 6

The English translation reads: On October 5, 1965, DR. MELITA REMOTIGUE ANO resident physician at the
Southern Islands Hospital, Surgery Department, found that the victim had suffered
"compound fracture on the skull, bilateral at the front parietal area" with "laceration
Q — What is your name? and cerebral contusion." From the nature of the injuries, she opined that the same
could have been inflicted by a sharp instrument or by a bolo, and although the
A — Catalino Espina laceration was not too deep as to cause instaneous death, the injury was fatal
because it had injured the brain.7
The prosecution also offered in evidence and as part of the cross-examination of III. The lower Court erred in giving credence to the testimony of
the accused a letter dated February 17, 1966 of the Cebu Provincial Jesusa BIRONDO witness for the prosecution;
Warden,8 showing that the accused had been previously convicted by final
judgment and had served sentence for two previous crimes of Theft committed in IV. The lower Court erred in finding that the defendant- appellant
the years 1963 and 1964. was the perpetrator of the crime. 11

Testifying in his defense the accused RODULFO SABIO, 18 years old, a fisherman, 1. We find merit in the contention that only the crime of Homicide had been
claimed that in the evening of October 4, 1965, he was at home listening to the committed. The evidence indicative of robbery consisted merely of the testimony of
radio till past 9:00 o'clock after which he went to sleep until about 6:00 o'clock in the witness Camilo Semilla who declared as follows:
morning of the next day, October 5, 1965, when he was awakened by his younger
brother who said that certain policemen were looking for him. The policemen took
him to the municipal building and incarcerated him without asking any question. He Q. How far was Rodulfo Sabio when he passed
was released the next day, October 6, but was arrested again on November 24, by you running that moment?
1965 at P. del Rosario Street in Cebu City. The accused admitted that he knew
witness, Camilo Semilla, because they were neighbors he denied that Camilo had A. About six meters from me.
seen him running by the seashore at about 5:00 o'clock in the morning of October
5, 1965 because at that time he was still asleep at home. The accused also Q. Did you notice while he passed by you
admitted knowing witness, Jesusa Birondo but alleged that she could not have running, if he was holding anything?
seen him coming out of the door of the house of Ino Espina at about 5:00 o'clock in
the morning of October 5, 1965 because at that time he was still asleep at home. 9
A. Yes, he had his hands inside his shirt.
Defense witness JACINTO MENDEZ corroborated the accused defense of alibi by
testifying that in the evening of October 4, 1965, he slept in the house of xxx xxx xxx
Hermogenes Sabio, father of the accused, because he and Hermogenes had
planned to go fishing the following morning. In the house he saw the accused and Q. What did you notice inside the house upon
the other children of Hermogenes. When he woke up at 5:00 o'clock in the morning your arrival from the seashore?
of the following day, October 5, he saw that the accused and the other children
were all in the house. He repaired the nets after waking up, then went out to sea
A. I saw that the ("barro") was already empty,
with Hermogenes at about 7:00 o'clock and came back at past 8:00 in the
lying on the ground, and the merchandise
morning. 10
items were in disorder.

In a Decision dated April 29, 1966, the trial Court found the accused guilty of the
Q. Do you know what things were placed in
crime of Robbery with Homicide attend by the aggravating circumstances of
that thing or tin can which you call barro
disregard of respect due to the victim, an octogenarian and recidivism, without any
mitigating circumstance, and sentenced him to death; to indemnify the heirs of the
deceased in the amount of P6,000.00; and to pay the costs. The trial Court, A. It contained the cash sales.
however, recommended that in view of the youthful age of the accused, the death
penalty be commuted to life imprisonment. Q. That "barro" which you mentioned, where
was it before you left the house to go to the
In this appeal, the defense has made the following: shore that dawn?

Assignment of Errors A. Beside the bed of lno

I. The lower Court erred in concluding that the felony of Robbery Q. You said that tin can or 'barro' where the
with Homicide, instead of only Homicide, had been established cash sales were kept was beside the bed, do
by the evidence; you know more or less the amount placed
therein?
II. The lower Court erred in admitting Exhibit "A" of the
prosecution as an Antemortem declaration of the victim; A. About P8.00.
 Q. How do you know that tin can had P8.00
inside?
A. Because the previous night we counted the
money.
Q. The P8.00 was the sales for how many
days?
A. That was the sales for Sunday and
Monday. 12
and that of Patrolman Fuentes, to wit:
Q. When you were inside the house of Catalino
Espina, what else did you find in the course of
your investigation?
A. I saw that the things of Catalino Espina and
the stands where the items for sale were
displayed were all in disarray.
xxx xxx xxx
Q. What other conversation did you have with
Catalino Espina after that first question?
A. I asked him why Papu hacked him, and the
victim answered that Papu demanded money
from him.
Q. Could we say that the answer of the
deceased Catalino Espina was outright after
the question?
A. Yes, sir.
Q. Even with the second question, is that
correct?
A. Yes, sir.
Q. Will you please let us know the third
question?
A. I asked him how much money he lost, and
he was not able to answer that question.
Q. Do you know why he did not answer that
question?
A. I think he did not answer that because when
he was hacked he had not yet given money to
Papu.
xxx xxx xxx
Q. You stated in the direct examination that the
things in the house of the deceased Catalino
Espina were in disarray, is that correct
A. Yes, sir.
Q. Will you please state before the Honorable
Court the things that were disarrayed when you
went up the house of the deceased?
A. The canned sardines were disarrayed,
others had dropped to the ground; the barro
was already opened, and other things in the
store were in topsy-turvy state. 13
Plainly, the evidence supportive of the charge of robbery is at best circumstantial
and does not establish beyond reasonable doubt that the accused had carried
away personal- ty belonging to the offended party. There was no eyewitness to the
alleged robbery, nor was any part of the alleged missing object recovered. The
consummation of the robbery cannot be inferred nor presumed from the
circumstance that the accused was seen running "with his hands inside his shirt",
or that the "barrio", alleged to have contained cash amounting to about P8.00, was
seen on the floor, open and empty, or that the things and merchandise inside the
house were in disarray People vs. Labita et al., [99 Phil. 1068, unreported case]). A
conviction for Robbery with Homicide requires that the robbery itself be proven as
conclusively as any other essential element of a crime (People vs. Pacala, 58
SCRA 370 [1974]), it not being enough to infer said robbery from mere suspicion
and presumption (U.S. vs. Alasaas 40 Phil. 878, 881).
Where there was no eyewitness to the alleged robbery, and the
evidence merely shows that after the killing some of the things
inside the house where the killing took place, were missing, it
cannot be presumed that the accused killers committed robbery.
It is necessary to prove intent to rob. This necessarily includes
evidence to the effect that the accused carried away the effects
or personalty of the offend- ed party. In the absence of evidence
 that the accused carried away the missing objects, they cannot
be convicted of robbery. 14 (Emphasis supplied)
Nor can the dying declaration of the victim which, in part, reads:
Q. Who slashed you and robbed you?
A. Rodulfo Sabio (Papu) the son of Menez
from Lo-ok.
be admitted to establish the fact of robbery. The admission of dying declarations
has always been strictly limited to criminal prosecutions for homicide or
murder 15 as evidence of the cause and surrounding circumstances of death. 16
2. Next, the defense questions the admissibility of Exhibit "A" of the prosecution as
an antemortem statement arguing that there is no evidence showing that when the
declaration was uttered the declarant was under a consciousness of an impending
death; that, in fact, the victim had hopes of recovery or his first word to Camilo
Semilla was for the latter to fetch the police. Defense counsel argues further that
there are doubts as to when said Exhibit "A" was thumb-marked because, although
it was already in existence in the morning of October 5, 1965, as alleged by
Patrolman Fuentes, the accused was never confronted with the document when he
was taken in to custody by the police for the first time from the morning of October
5 to October 6, 1965, thereby implying that the document did not yet exist at that
time.
The arguments advanced are unavailing. The seriousness of the injury on the
victim's forehead which had affected the brain and was profusely bleeding; the
victim's inability to speak until his head was raised; the spontaneous answer of the
victim that "only Papu Sabio is responsible for my death"; and his subsequent
demise from the direct effects of the wound on his forehead, strengthen the
conclusion that the victim must have known that his end was inevitable. That death
did not ensue till three days after the declaration was made will not alter its
probative force since it is not indispensable that a declarant expires immediately
thereafter. It is the belief in impending death and not the rapid succession of death,
in point of fact, that renders the dying declaration admissible. 17 Further, the fact
that the victim told his grandnephew Camilo Semilla to fetch the police, does not
negative the victim's feeling of hopelessness of recovery but rather emphasizes the
realization that he had so little time to disclose his assailant to the authorities. The
mere failure of the police to confront the accused cused with the antemortem
declaration the first time the latter was arrested and incarcerated from October 5 to
October 6, 1965, neither militates against the fact of its execution considering that it
was evidence that the police was under no compulsion to disclose.
3. The credibility of witness Jesusa Birondo is also assail ed by the defense
alleging firstly, that it is unbelievable that she could have really Identified the
accused as the person who came out of the victim's house considering that the
distance from her window to that house was 17 meters, and at 5:00 a.m. on
October 5, 1965, it was still dark and raining secondly, there is a glaring divergence
between her testimony at the trial and her statement at the preliminary
investigation, which statement was suppressed and not made known to the trial
Court; thirdly, said witness was uncertain as to when she actually brought to the
attention of the authorities the matter of her having seen the accused; and finally,
the defense asks if it were true that the accused had been Identified by said
witness to the Chief of Police even before the accused was taken into custody, why
was not the accused confronted with such fact?
For one who has known the accused since the latter's infancy and who is very
familiar with the accused's appearance because she sees him almost everyday
passing by her house or at the seashore where the accused has his house, it is not
incredible that Jesusa Birondo recognized the accused, at side view, even, at a
distance of 17 meters (which was the trial Court's estimate of the distance between
Catalino Espina's house and that of Jesusa Birondo as described by the accused)
at 5:00 o'clock in the morning and even if it were raining. Besides, Jesusa's
description of the clothes that the accused was wearing was corroborated by
Camilo Semilla, who also saw the accused that same morning. The alleged
divergence between Jesusa's statement at the preliminary investigation and her
testimony at the trial neither merits serious consideration since an affidavit, "being
taken ex parte is almost always incomplete and often inaccurate." 18 Besides, the
discrepancies pointed out by the defense, to wit: whether or not Jesusa saw what
the accused did after leaving the house of the victim and whether or not she went
down from her house after the incident, refer to minor details or collateral matters
which do not destroy the effectiveness of her testimony. Further, the, discrepancy
as to the exact date when the witness actually disclosed to the authorities her
having seen the accused on the morning of the incident, is also a minor detail
which does not detract from the reliability of her Identification of the accused.
Moreover, the defense has not shown any ulterior motive on the part of witness
Jesusa Birondo that would make her implicate and testify falsely against the
accused, who was a neighbor and an acquaintance.
4. In the fourth and last assignment of error, the defense decries the speed with
which the trial Court decided the case, alleging that the Decision was prepared and
signed on April 29, 1966, or one day after the close of trial on April 28, 1966, and
was read to the accused on April 30, 1966, without benefit of a transcript of
stenographic notes nor memoranda of the parties, so that the trial Court could not
have seriously considered the merits of the case or must have prejudged it even
before the trial ended. That contention is belied, however, by the detailed findings
of facts in the Decision of the trial Court duly supported by the transcript of
stenographic notes now on record.
Finally, the defense contends that the guilt of the accused has not been established
beyond reasonable doubt. The alibi put up by the accused, however, crumbles
under the positive Identification by witnesses Jesusa Birondo and Camilo Semilla
and the dying declaration of the victim, aside from the fact that because of the
proximity of the house of the accused to that of the victim, it was not impossible for
the accused to have been at the scene of the crime.
In summation the accused is guilty only of Homicide, attended by the aggravating
circumstances of disregard of respect due the offended party on account of his age,
and dwelling Recidivism is not to be considered because of our finding that the
crime of Robbery has not been conclusively established.
The penalty imposable for the crime of Homicide, attended by aggravating with no
mitigating circumstances, is reclusion temporal in its maximum period or seventeen
(17) years, four (4) months and one (1) day to twenty (20) years. 19
WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", guilty of the crime
of Homicide and hereby sentence him to an indeterminate penalty of twelve (12)
years of prision mayor as minimum, to twenty (20) years of reclusion temporal as
maximum; to indemnify the heirs of the deceased, Catalino Espina in the amount of
P12,000.00; and to pay the costs.
SO ORDERED.
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.
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 beencaused by the sharp edge of a
split bamboo (Rollo, p. 28). But the witness statement on this point was
not conclusive, thus:

The footprint allegedly found on the "abuhan" (near the stove) immediately xxx xxx xxx
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, (Direct examination by the prosecution)
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 Q Considering the location, the nature and crack of this linear cut wound
defying the law of gravity. Significantly, the manner in which the culprit on the left forefinger, what could have caused the same?
could have gained entry into the house of the victim was not satisfactorily
explained by the prosecution. A Any sharp instrument or object sir.

And then, the wounds on the appellant Ola's index finger and on his Q Could it have been caused by the sharp edge of a split bamboo?
mandible, which were described in the medical certificate issued by the
resident physician of the Marinduque Provincial Hospital in this manner: A Yes, possible.

xxx xxx xxx xxx xxx xxx

1. Linear cut wound, left index finger medial aspect, (TSN, March 29, 1977, p. 13)
middle portion 2 cm. in length

(Cross-examination)
2. Linear abrasion, right mandible, 1 " in length
traversing the course of the mandible
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?
Should there be no complication the above wound and injury
would require 6-7 days treatment.
A It is possible.
xxx xxx xxx
Q Could it have been caused by a knife?
(Exh. "L")
A Possible.
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 xxx xxx xxx
physician, Dr. Efren J. Labay, as well as the aforecited medical certificate
(Exh. "L"), merely establish the size and location of said wounds (TSN, (Id, pp. 15-16)
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
Nowhere in the aforequoted testimony can We discern anything definite as to the
crime.
cause of the wounds in question, which, by inference, would connect Ola to the
crime.
However, the trial court considered the existence of said wounds as
corroborative of Bustamante's narration that Ola forcibly passed through
Finally, We find the gesture of the dying woman too vague to be given much
the hole in the kitchen wall of the victim's house (Rollo, p. 28). This
probative value in determining the culpability of the appellant. The disadvantage
inference is far-fetched. The wounds are too few and too slight to have
presented by this kind of evidence is that, unlike an oral or a written declaration, a
been caused by the rough edges of the hole in the wall made of crushed
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. L-31961 January 9, 1979

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO ODENCIO and GUIAMELON MAMA, accused-appellants.

Manuel P. Calanog for appellants.

Office of the Solicitor General for appellee.

AQUINO, J.:

Florencio Odencio and Guiamelon Mama appealed from the decision of the Court
of First Instance of North Cotabato, finding them guilty of two separate crimes of
murder, sentencing each of them to two reclusion perpetuas, and ordering them to
pay P12,000 to the heirs of Prowa Talib and P12,000 to the heirs of Kadir Oranen
(Criminal Case No. 5276).

According to the prosecution, at about seven o'clock in the evening of June 29,
1968, while Prowa Talib (Palua Talib), a forty-year old farmer, was in the yard of his
house located at Barrio Simsiman, Pigcawayan, North Cotabato, handing a pot of
rice to his wife, Setie Mamalintao, who was near the stairs, he was felled down by a
volley of shots.

Setie rushed to the aid of her husband. When she looked in the direction where the
gunshots emanated, she saw Guiamelon Mama holding a gun near a coconut tree
around six brazas away. Then, she heard another volley of shots. She saw
Florencio Odencio (Poren), also holding a gun near another coconut tree around
ten meters away in the yard of the house of her neighbor, Daongan Karaing. She
noticed that Kadir Oranen, who was nearby, had fallen to the ground around three
arms' length from Daongan's house. Kadir died instantly.

Setie had known for a long time Florencio and Guiamelon who were friends and
neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated
adjacent farmlands.

While Setie was comforting her husband, he allegedly told her that he was going to
die. He directed her to remember what had happened to him and that they had
seen Guiamelon Mama and Poren armed with guns. Prior to that shooting incident,
Prowa Talib had reported to the barrio captain that Florencio Odencio had stolen
his lumber.

The two assailants fled westward. At the time the incident occurred, Japal Rongot
was on his way to Talib's house. He encountered Guiamelon and Joseph Odencio
with both of whom he was well acquainted. He asked Guiamelon why there were
gunshots but the latter did not make any reply. Upon reaching Talib's house,
Rongot saw Setie crying and holding Talib on her lap. Setie told him that Talib was
shot by Guiamelon and she pointed to him Oranen's corpse which was about two
arms' length from Talib.
Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard, the
gunshots on the occasion in question. He hastened to Talib's house. Setie told him
that Guiamelon Mama had shot Talib. She advised her uncle not to use his
flashlight because Guiamelon was still in the vicinity. Setie also told Towa that
Florencio Odencio had shot Oranen. Towa left Talib's house in order to get
assistance from his father-in-law. While crossing the trail his flashlight focussed on
Florencio Odencio with two companions leaving the scene of the crime.
Policemen arrived at Talib's house. Setie informed them that Guiamelon was the
gunwielder. They brought Talib to a medical clinic where he was interrogated by
Patrolman Joaquin Sañada Talib told Sañada that his assailants were Guiamelon,
Florencio Odencio and Florencio's father, Joseph Odencio. Due to the critical
condition of Talib (nagaagonto), he was not able to sign his dying declaration (Exh.
B) as taken down by Patrolman Sañada Talib was brought to the hospital. He died
on the following day.
In that unsigned antemortem declaration, Talib revealed that Florencio Odencio
suspected that he and Oranen had masterminded the theft of Joseph Odencio's
two carabaos, and that, on the other hand, Guiamelon suspected Talib of having
stolen the carabao of Damiog, the father-in-law of Guiamelon. It was stated further
in the same dying declaration that Talib had told Patrolman Sañada that he wanted
to sign it but that he could not do so because of the wound in his arm. Talib also
articulated his belief that he was going to die because he could hardly breathe and
his wound was painful.
On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem
statement, Sañada executed an affidavit reciting the circumstances surrounding the
taking thereof. Sañada testified in court on Talib's dying declaration.
The autopsy disclosed that Talib sustained eight gunshot wounds in the back or
posterior chest wall. No autopsy was performed on the body of Oranen who, as
noted above, died at the scene of the crime.
On July 1, 1968, a complaint for double murder was filed in the municipal court
against Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga,
Poren's father-in-law. They waived the second stage of the preliminary
investigation. On September 19, 1968, an information was filed in the Court of First
Instance against Guiamelon Florencio Odencio and Joseph Odencio, The trial court
acquitted Joseph and convicted only Florencio and Guiamelon.
In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and
that he had a misunderstanding with Oranen and Talib with both of whom he was
acquainted. Florencio testified that he was in his house when the shooting
occurred. He was arrested on the following day, June 30, 1968. He surmised that
he was implicated in the case because he did not support Mayor Doruelo, the
incumbent mayor, and, instead, he voted for Estañol, the candidate of the Liberal
Party. Florencio's alibi was corroborated by his wife and his brother-in-law, Antonio
Cesar.
The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same
line of defense. He declared that he was also in his house when Talib was shot;
that he had no misunderstanding with Talib, who is his father's brother-in-law, being
the brother of his stepmother, his father's second wife; that he was arrested while
he was attending Talib's funeral, and that he came to know his co-accused
Florencio Odencio only in jail.
The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified
that he was present when Patrolman Sañada interrogated Talib and that the latter
declared that he was not able to recognize his assailant because it was dark.
Sañada said he did not know of that interrogation made by Jubilan.
In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that
the accused were indubitably Identified as the assailants in Talib's dying
declarations to his wife and Patrolman Sañada. Setie Mamalintao in her statement
to the police declared that she was able to recognize Florencio and Guiamelon
because there was a "big torch" in front of her house and Karaing's house (No. 19,
Exh. 1, p. 11, Record).
The trial court noted that there "was a good amount of lighting in the yard of Prowa
Talib because he was preparing" supper when he was shot and that Setie was able
to recognize the accused because she had been acquainted with them for a long
time. As stated above, two witnesses saw the accused in the vicinity of Talib's
house shortly after the shooting. Therefore, the contention of appellants' counsel de
oficio that they had not been sufficiently Identified as the killers cannot be
sustained.
Another contention of counsel de oficio is that the trial court erred in finding that
Guiamelon and Odencio conspired to kill Talib and Oranen. That contention is
belied by the evidence. Guiamelon and Odencio were seen pacing back and forth
near Talib's house on the day of the incident (No. 27, Exh. 1). They shot the two
victims in the same place and almost simultaneously, thus showing a coordination
of efforts and community of design.
On leaving the scene of the crime, they proceeded in the same direction
(westward). They were animated by the same motive, which was to liquidate the
victims because the latter allegedly stole the carabaos of the relatives of the
accused. The record does not disclose any reason why Setie Mamalintao and
Patrolman Sañada would frame up the appellants.
The manner in which they shot the victims shows treachery. The shooting was not
the product of momentary impulse. There was alevosia because the two
malefactors, taking advantage of the cover of night, stationed themselves in a place
where they could shoot the victims with impunity without any risk to themselves or
without exposing themselves to any retaliation since the victims did not expect to
be assaulted at that time and place.
Appellants' counsel further contends that they were convicted on the basis of the
wife's uncorroborated testimony "which is open to suspicion due to inherent
improbabilities'' and "motives to falsify the truth". That contention is not correct.
Talib's antemortem statement fortifies the testimony of his widow, an eyewitness.
We have stressed that two other witnesses saw the appellants leaving the scene of
the crime.
Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying
declaration may be oral or written If oral, the witness, who heard it, may testify
thereto without the necessity, of course, of reproducing exactly the words of the
decedent, if he is able to give the substance thereof. An unsigned dying declaration
may be used as a memorandum by the witness who took it down. (See 5 Moran's
Comments on the Rules of Court, 1970 Ed., pp. 315-316.)
We are satisfied that the guilt of the appellants was proven beyond reasonable
doubt. As they were co-conspirators, they are each liable for the two murders.
There being no modifying circumstances concomitant with the commission of the
two assassinations, the trial court properly penalized each murder with reclusion
perpetua (Arts. 64[1] and 248, Revised Penal Code).
The trial court's judgment is affirmed with the sole modification that the two
appellants should be held solidarity liable for the two indemnities of P12,000 each.
In the service of the two reclusion perpetuas, the forty-year limit fixed in article 70 of
the Revised Penal Code should be observed. Costs against the appellants.
SO ORDERED.
G.R. No. L-29365 March 25, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TEODORO ALCOBER GUERON and EMILIO MAGNO, defendants, TEODORO
ALCOBER GUERON, defendant-appellant,
ABAD SANTOS, J.:
In the Court of First Instance of Samar (now Regional Trial Court), an information
for "double murder" was filed against TEODORO ALCOBER GUERON and EMILIO
MAGNO, Docketed as Criminal Case No. 6996, the information reads:
That on or about the 7th day of October, 1964, in the Municipality
of Sta. Rita, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and helping one another with
one Jesus Magno alias Osing, who is still at large, with intent to
kill, with treachery, evident premeditation, armed with guns and at
night time, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot Bonifacio Dayoc and Dalmacio Batica
with said guns which the accused had conveniently provided
themselves for the purpose, thereby inflicting upon said Bonifacio
Dayoc and Dalmacio Batica several wounds on the different parts
of their bodies which wounds caused their death.
The trial court rendered the following judgment:
THEREFORE, judgment is hereby rendered finding and declaring
the defendants Teodoro Alcober Gueron and Emilio Magno guilty
beyond reasonable doubt as principals of the crime of double
murder as charged, with one aggravating and no mitigating
circumstance attending; and convicts each one of them to
RECLUSION PERPETUA, with the accessory penalties,
indemnify, jointly and severally, the heirs of Bonifacio Dayoc ten
thousand pesos, and those of Dalmacio Batica also ten thousand
pesos, and pay the costs.
Only Teodoro Alcober Gueron appealed. Pending appeal he has been confined at
the New Bilibid Prisons.
The People's version of the facts is as follows:
On August 9, 1964, the spouses Bonifacio Dayoc and
Purificacion Comillor were in barrio Cabacungan, Sta. Rita,
Samar, to witness the cockfight and to buy salted fish (pp. 65, 66,
t.s.n., Rojas). There, Bonifacio met Emilio Magno, who was from
Burauen, Leyte, and was told that he was going to organize a
'gang' composed of youngsters from Bagolibas, Cabacungan,
Pagsulhugan and Crossing (p. 66, t.s.n., Rojas). Bonifacio replied
that Emilio was just a newcomer in the place and a member of
his family had just died and yet he was stirring up trouble (p. 66,
t.s.n., Rojas). Emilio retorted, 'I know you are Borenes (p. 66,
t.s.n., Rojas). 'I am not Borenes, but I am Bonifacio. Don't call me
Borenes,' answered Bonifacio (P. 66, t.s.n., Rojas). Emilio
rejoined. 'Let us know each other,' and extended his hand to
shake Bonifacio's as he repeated,' Let us know each other,
Borenes' (p. 66, t.s.n., Rojas). Bonifacio reiterated, 'I am not
Boranes, I am Bonifacio' and said, 'Let us consume the whole
tuba' (p. 66, t.s.n., Rojas). After finishing his drink, Bonifacio
struck Emilio with his glass hitting him on the face (p. 66, t.s.n.,
Rojas). Then he went up the table and kicked Emilio on the head
who thus fell flat on the face (p. 66, t.s.n., Rojas). Bonifacio
ordered Emilio to get up and fight, but the latter did not; instead,
he ran home and got a bolo (p. 66, t.s.n., Rojas). Bonifacio in turn
got his own (p. 66, t.s.n., Rojas). Emilio struck Bonifacio but did
not hit him; Bonifacio retaliated (p. 67, t.s.n., Rojas). Then Emilio
ran home and did not leave his house anymore (p. 67, t.s.n.,
Rojas). Because Emilio refused to come down, Bonifacio went
home with his wife (p. 67, t.s.n., Rojas).
In the morning of October 7, 1964, Teodoro Gueron came to the
house of Bonifacio Dayoc to sell him coconuts and to borrow P
60 from him (p. 67, t.s.n., Rojas). Because Bonifacio had not yet
received his salary, he told Teodoro to meet him in the evening at
sitio Crossing as he might be able to get his pay from Almendras
Enterprises, where he was working, and give him the money (p.
68, t.s.n., Rojas). The next morning, somebody informed
Bonifacio's wife that her husband (Bonifacio) was dead on the
road (p. 68, t.s.n.,Rojas). When she went to the place to verify,
she found him lying lifeless (p. 68, t.s.n., Rojas). Upon inquiring
from his companion what happened to both of them, Dalmacio
Batica told her they were shot by Teodoro Gueron, Jesus Magno
and Emilio Magno the night before (p. 68, t.s.n., Rojas).
At about 9:30 o'clock in the evening of October 7, 1964, while
Antonio Beron, who was employed as scaler at the logging camp
of F.M. Cojuanco Enterprises in Guintigian was afoot on the way
home to barrio Bagolibas, Santa Rita, Samar, he heard two gun
reports after reaching sitio Crossing (pp. 27, 28, 29, 30, 31, t.s.n.,
Rojas). He continued walking, wondering whether somebody was
hunting (p. 31, t.s.n., Rojas). A little later, he met two persons
walking hurriedly, whom he recognized to be Teodoro Gueron,
and Jesus Magno, when he focused his flashlight at them the
former trying to conceal something, (pp. 31, 34, 35, 36, 37. t.s.n.,
Rojas; Exhibit F, p. 51, rec.). Teodoro Gueron was a former
employee of the logging company where he worked, and Jesus
Magno was his friend (pp. 31, 37, t.s.n., Rojas). When he asked
where they came from, neither of them answered him but kept on
walking hurriedly (p. 32, t.s.n., Rojas; Exhibit F, p. 51, rec.) Early
next morning, Beron's mother-in-law Valentina Ronda, told him
two persons had been shot near Bagolibas, Sta. Rita, Samar and
when he asked who they were, she answered it was Bonifacio
Dayoc and Dalmacio Batica (p. 33, t.s.n., Rojas). After a hurried
breakfast, Beron repaired to the place and found Bonifacio dead
being covered with a piece of cloth by his wife (p. 33, t.s.n.,
Rojas). When he inquired about Dalmacio, he was told he was at
his house where he was lying wounded (p. 33, t.s.n., Rojas).
In the evening of October 7, 1964, after her husband, Jesus Q.
Batica, Sr., a teacher in barrio Bagolibas, Sta. Rita, Samar, had
returned home from school where he prepared the questions to
be given during an examination, his wife, Eustaquia A. Batica,
also a teacher in the same school, heard the barking of dogs in
front of their house (pp. 5, 6, 18, 19, t.s.n., Rojas). When she
opened the window and focused a flashlight toward the road,
Eustaquia saw Emilio Magno, whom she knew since about a
year before because he used to pass by in going to sitio
Crossing, wearing a red shirt, black pants and a hat, and carrying
a gun in his right hand running (pp. 19, 21, 24, 25, t.s.n.,). At
once, she closed the window because she became afraid when
she saw the gun (p. 19, t.s.n., Rojas). While already in bed,
Eustaquia told her husband that she saw Emilio Magno pass by
with a gun and that while he was away she heard two gun
reports, faintly coming from the junction of the town of Basey, but
her husband told her not to mind it (p. 6, 7, 12, 20, t.s.n., Rojas).
'Then they thought of his son and her stepson Dalmacio Batica,
whose house was about 30 meters away from theirs, if he was at
home, and surmised that he was out because they could not hear
him coughing (pp. 7, 20, t.s.n., Rojas). Afterwards both fell asleep
(pp. 7, 21, t.s.n., Rojas).
Early in the morning of the next day, October 8, 1964, while the
spouses Bernardo Rama and Pacita Rama were on the way to
the farm owned by Jesus Batica, Sr., to plant rice, they found his
son Dalmacio on the side of the highway lying on his left side,
wounded and bleeding (pp. 46, 47, 59, 60, 61, t.s.n., Rojas).
When Bernardo asked what happened to him, Dalmacio replied
that he and Bonifacio Dayoc were shot the night before by
Teodoro Gueron, Emilio Magno and Jesus Magno (pp. 48, 49,
60, t.s.n., Rojas). Bernardo saw Bonifacio about 25 meters away
already dead and bathed in his own blood (pp. 50, 51, t.s.n.,
Rojas). Dalmacio then requested the spouses to inform his father
of what had befallen him (pp. 47, 62. t.s.n., Rojas).
The spouses Jesus Batica, Sr. and Eustaquia A. Batica had just
awakened when Bernardo and his wife arrived at their house
telling them that Dalmacio was in the farm; that he told Bernardo
and his wife to inform them that he was shot by Teodoro Gueron,
Jesus Magno and Emilio Magno; that he could not walk by
himself alone, hence he should be fetched; and that Bonifacio
Dayoc was in the same place (pp, 8, 12, 21, 51, 59, 62, 64, t.s.n., Q Why did you know the one who shot you?
Rojas).
A Because when we were flashlighted at I
Jesus Sr. lost no time in ordering his son, Jesus, Jr. to get a focused my flashlight at
hammock and, together with him, Romeo Badaña, Jesus Yerro,
Dominador Armada, Francisco Yerro, a rural policeman and them.
other, repaired to the place where Dalmacio was (pp. 8, 22, t.s.n.
Rojas). After placing him on the hammock. they brought him to
his (Dalmacio's house where his brother Jesus, Jr., the barrio Q What happened to your flashlight?
captain, took his statement in writing, which was recorded by his
own father, Jesus, Sr. in the typewriter (pp 9, 10, 22, 23, 62, 63, A I did not know the moment I was hit on my
t.s.n., Rojas; Exhibits A, A-1 pp. 3, 47, rec.), as follows: thighs.

Q What happened to you? Q Where else were you hit?

A Teddy (Teodoro Alcober), Osing (Jesus A At my left arm and at my back.

Magno) and his brother Eming (Emilio Magno)
shot me. Q Why were you there at our rice plantation?

Q Who was with you when you were shot at? A Because I managed to crawl slowly.

A Boning (Bonifacio Dayoc). Q Why did you not go home?

Q What was your position when you were A I could not resist due to my wounds.
together?

Q Do you have personal grudges with those

A We were breast to breast. I was at his right who shot you?
side.

A None.
Q Where was the one who shot you?

Q On what side were the ones who shot you?

A Above the road at the throught cut at the
avocado plantation.
A On our left side, near our avocado plantation.
Q How far to you?
Q What time were you shot?
A More or less five Brazas.
A About 10:00 o'clock in the evening, October
7, 1964.
Q Do you know that Boning is dead?

Q Where did you come from?

A No.

A From Crossing at Madi Tarcing.

Q Did you notice if Boning was hit when you
were fired at?
Q What did you do in your Madi Tarcing?
A I did not.
A I paid my debt.
 Q You only reached Crossing?
A No.
Q Where else did you go?
A We went to Landing, drew our salary with
Boning.
Q What time did you go to Landing?
A About 4:00 o'clock in the afternoon, October
7, 1964.
Q Do you have any grudge with those persons
who shot you?
A None.
Q Did you quarrel with them? during your trip?
A None.
Q You and Boning, did you not quarrel?
A None.
Q Will you die of your wounds?
A I cannot ascertain.
Q What do you feel of your wounds?
A I feel weak and I am thirsty.
Q Can you sign these, your answers?
A Yes, sir." (Exhibit A-1, p. 47, rec.)
Afterwards they brought him to the provincial hospital in
Tacloban, where he expired at 9:20 o'clock in the morning of the
next day, October 8, 1964 (Exhibit D, p. 19; rec.; Exhibit E-I, p.
50, rec.). Cause of death was toxemia and shock due to multiple
gunshot wounds (Exhibits D, D-1, p. 19, rec.)
According to the autopsy report, the cause of Bonifacio Dayoc's
death was severe internal hemorrhage due to the injury of the
right auricle of the heart (Exhibits B, B-1, pp. 15, 16, rec.; Exhibit
C, p. 15, rec.). (Brief, pp. 2- 9.)
The appellant claims that:
I. THE LOWER COURT ERRED IN ADMITTING THE AFFIDAVIT
OF DALMACIO BATICA AS PART OF THE RES GESTAE.
II. THE LOWER COURT ERRED IN RESOLVING DOUBTS
AGAINST THE ACCUSED.
III. THE LOWER COURT ERRED IN CONSIDERING THE
AGGRAVATING CIRCUMSTANCE OF NIGHT TIME AGAINST
THE ACCUSED.
None of the witnesses for the prosecution actually saw Gueron and Magno in the
act of shooting Dayoc and Batica. The testimonial evidence in respect of the
shooting is purely circumstantial with the exception of Exhibit A the affidavit of the
deceased Dalmacio Batica-which has been reproduced above.
In appreciating Exhibit A, the trial court said:
It is indeed clear that the statements contained in Exhibits "A",
having been given by the victim soon after the incident, at the
time when he had not yet the least chance of twisting the truth,
especially at the critical condition in which he was then found,
informing and describing the manner of assault and naming the
assailants, were the facts of the incident. Exhibit "A", therefore,
shall be, as it is hereby admitted as part of the declaration of
Jesus Batica, Sr., and the statements therein contained as part of
the res gestae, and valid as proof.
The appellant now claims that it was error for the trial court to regard Exhibit A as
part of the res gestae. We do not agree.
The hearsay rule excludes evidence that cannot be tested by cross- examination.
Exhibit A would normally be classified as hearsay because the one who executed it
could not be cross-examined on it during the trial; he was dead. But there are
exceptions to the hearsay rule. One of them is that provided in Sec. 36 of Rule 130,
Rules of Court, as follows:
Sec. 36. Part of the res gestae.— Statements made by a person
while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as a part of the res gestae. So, also,
statements accompanying an equivocal act material to the issue,
 and giving it a legal significance, may be received as a part of indemnify the heirs of the two deceased in the amount of Twelve Thousand
the res gestae. (P12,000.00) Pesos each. Costs against the appellant.

Bearing in mind the circumstances narrated above under which Exhibit A was SO ORDERED,
executed, there can be no doubt that it is admissible in evidence as part of the res
gestae. (People vs. Portento, 48 Phil. 971 [1924]; People vs. Reyes, 52 Phil. 538
[1928]; People vs. Quianzon, 62 Phil. 162 [1935]; People vs. Reyes, 82 Phil. 563
[1949]; People vs. Mascariñas, 94 Phil. 293 [1954].)

Another exception to the hearsay rule is the dying declaration. Sec. 31 of Rule 130
provides:

Sec. 31. Dying Declaration. — The declaration of a dying person

made under a consciousness of an impending death, may be
received in a criminal case wherein his death is the subject of
inquiry, as evidence of the cause and surrounding circumstances
of such death.

Exhibit A is admissible in evidence as an ante-mortem declaration considering that

it was made under consciousness of impending death; the declarant died the next
day from the gunshot wounds he sustained. (People vs. Mascarinas, 94 Phil. 293
[1954]; People vs. de Ananias, 96 Phil. 979 [1955]; Cruz vs. People, 71 Phil. 350
[1941]; People vs. Alfaro, 83 Phil. 85 [1949].)

The second assignment of error is but a consequence of the first and does not
have to be discussed.

The trial court said that "The assault was with treachery which qualified the killing
as double murder, as the means employed by the assailants, with the use of
firearm, insured the execution of the assault without risk to themselves from the
defense which the victims could have made. In the commission, the presence of
the aggravating circumstance of night time is evident, the offenders having taken
advantage of the darkness to commit it with greater facility and/or impunity. "

The appellant questions the appreciation of nocturnity. We agree for nocturnity is

absorbed by alevosia (People vs. Pardo, 79 Phil. 568 [1947]; People vs. Balagtas,
68 Phil. 675 [1939]; People vs. Ballocanag, 83 Phil. 569 [1949]; People vs.
Pengzon, 44 Phil. 224 [1922]; U.S. vs. Buncad, 25 Phil. 530 [1913]; People vs.
Alfaro, 83 Phil. 85 [1949]; U.S. vs. Empeinado, 9 Phil. 613 [1908]; People vs. Enot,
L-17530, Oct. 30,1962, 6 SCRA 325).

Two murders were committed which means there must be a penalty for each
murder. Absent aggravating and mitigating circumstances the appropriate penalty
is reclusion perpetua for each murder. Moreover, the civil indemnity should be P
12,000.00 for each death,

WHEREFORE, the judgment of the trial court convicting the, appellant is affirmed
but modified in that he shall suffer the penalty of two (2) reclusion perpetua and
 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TEODORO LANZA, defendant-appellant.

ANTONIO, J.:

Appeal from the decision of the Court of First Instance of Zamboanga del Norte,
Criminal Case No. 4626, finding appellant Teodoro Lanza guilty beyond reasonable
doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion
perpetua with the accessories of the law; to indemnify the lawful heirs of the
deceased in the sum of P12,000.00, without subsidiary imprisonment in case of
insolvency; to pay the widow of said deceased the sum of P2,000.00 as moral
damages and P500.00 as hospital and burial expenses; and to pay the costs.

In a complaint filed by the Acting Chief of Police of Dipolog, Zamboanga del Norte,
dated October 10, 1966, appellant Teodoro Lanza was charged with the crime of
Murder, as follows:

That on or during the 8th day of October, 1966, at around 1:00

A.M. at the Poblacion, Dipolog, Zamboanga del Norte,
Philippines and within the preliminary jurisdiction of this
Honorable Court, the above-named accused armed with a knife,
with intent to kill and with treachery and evident premeditation,
did then and there willfully, unlawfully and feloniously attack and
wound therewith one LEONARDO ZAMORAS at the back and as
a result of which the said Leonardo Zamoras died a few days
later.

ALL CONTRARY TO LAW, with the qualifying circumstance of

evident premeditation and the generic aggravating circumstance
of nighttime. (CFI Record, p. 1).

Thereafter, or on February 8, 1967, the Provincial Fiscal of Zamboanga del Norte

filed the corresponding Information against herein appellant, who was subsequently
arraigned on May 2, 1967. He entered a plea of not guilty.

The prosecution's primary evidence against herein appellant is the ante

mortem statement of the victim (Exhibit "A"), taken by Cpl. Fortunato Salaveria on
October 8, 1966 at the North General Clinic of Dipolog, Zamboanga del Norte,
which reads as follows:

Q. What is your name?

G.R. No. L-31782 December 14, 1979

A. Leonardo Zamoras, 34 years old, married

and a resident of Galas, Dipolog, Zamboanga
del Norte.
Q. What happened to you?
A. I was stabbed.
Q. Who stabbed you?
A. I was stabbed by a person who followed me
from the Municipal Building.
Q. In what particular place were you stabbed?
A. At the Shell gasoline station.
Q. Do you know the person who stabbed you?
A. I can recognize him by face.
Q. If I present the person to you can you
recognize him? I am presenting to you Teodoro
Lanza is he the very person who stabbed you
last night, October 7, 1966?
A. Yes, sir.
Q. Did you have any misunderstanding prior to
the incident?
A. None, sir.
Q. What must have been the motive of
stabbing you, then?
A. I believe he resented (it) when I accidentally
stepped on the shoulder of his wife who
happened to be lying on the concrete floor of
the Municipal Building.
Q. How many times did he stab you?
A. Only once.
Q. Do you think you will survive as a result of
your wounds?
A. It all deoends. (CFI Record, pp.166-168).
Fortunato Salaveria, Police Sergeant of the Dipolog Police Force, testified that at
around 10:00 o'clock in the morning of October 8, 1966, he was ordered by the
Acting Chief of Police, Ciriaco Gonzales, to take the ante mortem statement of one
Leonardo Zamoras, who had been -,tabbed and was then at the North General
Clinic at Torno, Dipolog, Zamboanga del Norte. Upon arrival at the aforesaid clinic,
he found Leonardo Zamoras in critical condition. He then took the ante
mortem statement of Leonardo Zamoras (Exhibits "A", "A-1 " and "A-2") by writing
in longhand the questions and answers of the victim. This was done in the
presence of several persons, including Jose Zamoras, brother of the victim.
Afterwards, Leonardo Zamoras affixed his left and right thumbmarks on the ante
mortem statement. He affirmed that all the answers therein were gived by Leonardo
Zamoras. P.G. Sales, a nurse at the clinic signed the statement as a witness to its
execution (Exhibit "A-8").
Salaveria further testified that while taking the victim's statement, he called up the
Chief of Police and requested him to bring the accused to the clinic for Identification
by the victim; that at that time Teodoro Lanza was already being detained at the
municipal jail of Dipolog as a suspect in the stabbing; that when appellant was
brought infront of the victim, the latter Identified him as the very same person who
stabbed him.
On cross examination, this witness stated that when he arrived at the clinic, the
victim was still alive and lying in bed, with his eyes closed; that he called the victim
by name, Identified himself and when the latter agreed, he took the statement iii the
presence of several relatives of the victim.
Basilia Luna Vda, de Zamoras, widow of the victim, testified for the prosecution,
stating that in the morning of October 8, 1966, while she was in her house, she was
informed by her brother-in-law, Artemio Zamoras, that her husband was at the
North general Clinic. When she went to the clinic, she found her husband lying on
the bed. He was feverish and his clothes were bloody and he had a wound on the
back. She likewise Identified the shirt worn by her husband on the night of the
incident, showing the hole (Exhibit "C") allegedly caused by the stab wound.
Jose Zamoras, brother of the deceased, corroborated policeman, Salaveria's
testimony, stating that he stayed in the North General Clinic until the following day
and was present when Cpl. Salaveria took the ante mortem statement of his
brother; that while the statement was being taken, he was about one-half meter
from Cpl. Salaveria and Leonardo Zamoras; that when asked who stabbed him,
Leonardo Zamoras pointed to Teodoro Lanza, who was present; that at that time,
the condition of his brother was "not so serious"; that the ante mortem statement
was taken at around 10:00 o'clock in the morning of October 8, 1966, and his
brother died on October 9, 1966, at about 3:00 o'clock in the afternoon.
When asked whether his brother was asked each of the questions appearing on
the ante mortem statement and whether his brother answered the same, this
witness replied in the affirmative.
On cross examination, he stated that his brother could not talk from 1:00 o'clock
dawn until he was given dextrose that morning; that at around 9:00 o'clock his
brother could already talk a little; and that when their sister, Elma Zamoras, inquired
as to who was responsible for his wound, he answered that it was a man who had
followed him from the municipal building.
Dr. Jose Noriega, the surgeon who attended to the victim, testified that the latter
was in a state of shock when admitted to the hospital at about 1:40 a.m. on October
8, 1966; that the victim was able to say that he was stabbed and to indicate the
painful part of his body, but thereafter he remained incoherent until his condition
was gradually improved by blood transfusion and the administration of medical
remedies; that his blood pressure was revived and returned to normal only at about
1:00 o'clock in the afternoon of the same day; that because of such improvement
he was immediately operated upon; that in the course of the four-hour operation, it
was found that there were fatal injuries on the left kidney and fatal injuries on the
great vessels of the mesentery; that the victim died twenty four hours after surgery
due to secondary hemorrhage or cerebral embolism; and that he issued a
certificate as to the cause of death of Leonardo Zamoras.
Ciriaco D. Gonzales, Acting Chief of Police of Dipolog, confirmed the fact that
although appellant denied having stabbed Leonardo Zamoras, he nevertheless
admitted to him that he followed the victim along Rizal Avenue when his wife
complained to him that the victim had stepped on her while she was lying on the
floor of the municipal building. Appellant, however, explained that he was not able
to overtake the deceased.
He further testified that shortly before 1:00 o'clock in the afternoon of October
8,1966, Cpl. Salaveria informed him by telephone that the victim was conscious
and could talk. Consequently, he brought the accused to the clinic for Identification
by the victim. When they arrived in the hospital there were several civilians. He also
saw Cpl. Salaveria, Cpl. Calibo and Pat. Limbaga in the premises. He declared that
the victim recognized him. When he asked the victim whether he could Identify his
assailant, the latter answered in the affirmative. He then brought the appellant
inside the room, and in the presence of all the people present the victim pointed to
the appellant as the person who had stabbed him. This witness likewise confirmed
that Cpl. Salaveria asked the questions and the victim, Leonardo Zamoras, gave
the answers appearing in the ante mortem statement, and that they both spoke in
Cebuano, which was translated into the English language by Cpl. Salaveria.
Further, he attested to the fact that the thumbmarks appearing on the statement
were those of Leonardo Zamoras, and that he was present when the same were
affixed.
Vicente Limbaga, formerly municipal policeman of Dipolog, Zamboanga del Norte,
testified that he served in such capacity up to October 21, 1967; that at about 1:30
in the early morning of October 9, 1966, Leonardo Zamoras arrived at the municipal
building where he was detailed as guard and reported to him about the
disappearance of his Leonardo Zamoras') car; that after making such report,
Leonardo Zamoras went down to the ground floor of the municipal building; that not
long after, he heard a commotion and immediately went downstairs and found
many people lying on the floor of the municipal building because it was the town
fiesta of Dipolog; that when he inquired what was the cause of the commotion one
Luisa, the wife of Teodoro Lanza, told him that a certain short and stocky man
passed by and stepped on her foot while she was lying on the floor, and he tried to
hold her shoulder and signalled her to go to a room with him and thus caused the
commotion. When he asked her why she did not report the matter to him so the
person could be investigated, she answered: 'Well, anyway, all would be known
latter because my husband followed him. Not long after, Teodoro Lanza returned
and he observed that Lanza appeared restless, kept moving from one place to
another, continued whispering something to Ms wife, could not sleep and
repeatedly went to the comfort room. Afterwards, he received a report that
Leonardo Zamoras had been stabbed near the Shell gasoline station. Suspecting
that Teodoro Lanza had something to do with the stabbing, he took Lanza into his
office. He recorded the incident in the police blotter and conducted an investigation
of the accused. The accused was again investigated by the Acting Chief of Police.
The defense presented in evidence the testimonies of Pat. Edgardo Maginsay and
accused Teodoro Lanza, as well as various documentary evidence.
Pat. Edgardo Maginsay of the Dipolog Police Force testified that since February
1966, he has been the custodian of the police blotter of the Dipolog Police Force;
that he was the one who recorded the entries in the police blotter for October 8,
1966; that said entries were made from the records of the night blotter, which was
in the care of the building guard; and that therefore, the entries in the night blotter
and of the police blotter are the same.
Appellant Teodoro Lanza alleged that on the night in question he
was sleeping, together with his family, inside the municipal
building of Dipolog, his livelihood being that of a "feriante" and he
was there to maintain the shooting gallery and some gambling
devices inside the plaza where the "feria" was being held. He
declared that after midnight, he was awakened by two policemen
and brought to the office of the Chief of Police where he was
asked whether he had gone out of the building or not. When he
replied that he had not, he was brought and confined inside the
municipal jail. Later the following morning he was investigated by
the police sergeant after which he was brought to the hospital by
the Chief of Police and one Pat. Centino. He was taken inside the
operating room, presented before a wounded man for
Identification, but the latter, whose eyes were closed, could not
Identify him. After staying inside the operating room for half an
hour, he was returned to the municipal building.
In his brief, appellant stated that he alleged ante
mortem statement could not have been given by the victim as he
was not in a position at the time of the alleged confrontation
either to talk to the investigators or to Identify his alleged
assailant, and assuming that the ante mortem statement is
genuine, the same is inadmissible as evidence of a dying
declaration because at the time of its execution, the victim had
expectations or hopes of recovery. Appellant makes capital of the
testimony of Dr. Jose Noriega that from 8:00 o'clock in the
morning to 12:00 noon of October 8, 1966, the victim was still
bleeding and in a state of shock; the declaration of the widow,
Basilia Luna Vda. de Zamoras, that her husband could not talk to
her while he was on the hospital bed; and the statement of Jose
Zamoras that upon seeing his brother he called his name but the
latter did not answer.
These arguments are not supported by the record. Counsel for
the appellant cited portions of testimonies out of context of the
entire declarations. Thus, while Dr. Jose Noriega admitted that
the witness was "semi-conscious" at the time of his admission,
he was positive that the victim was able to tell him that he was
stabbed. He even complained of pain on the abdomen. He
likewise stated that the condition of the victim improved to such a
degree that he was strong enough after the blood transfusion to
be operated on at around noontime of the same day. 1 As testified
to by the other witness, he was able to talk by mid-morning.
Thus, his brother, Jose Zamoras, testified that he was able to talk
intelligently some hours before the operation, although in the
beginning he could not. He testified on cross examination as
follows:
Q Up to 9:00 o'clock of the same day, October
8, the same condition — could not still talk?
A. He could talk already but not yet clear.
Q. Do you mean to say he will just murmur?
A. Yes, sir.
xxx xxx xxx
Q. At 9:30 o'clock, October 8, 1966, what
happened right in the bedroom of the
deceased?
A. Leonardo Zamoras was still lying in bed but
could talk.
Q. Do you mean to say he could just talk by
himself, nobody asking?
A. No, after he was asked.
Q. How do you know that at 9:30 o'clock,
October 8, 1966, he talked?
A. Because we asked him some questions.
Q. Who asked the deceased some questions?
A. My sister, Elma Zamoras.
Q. What was the statement (sic) asked?
A. My sister inquired as to who was the person
responsible
for his wound.
Q. What was his answer?
A. He answered that (it was) the man following
him from the municipal building.
Q. There was no name mentioned?
A. No name mentioned.
Q. And that was in a harsh voice?
A. In a natural voice. 2
Likewise, the testimony of the widow, Basilia Luna Vda. de Zamoras to the effect
that her husband did not talk to her on October 8, 1966, does not necessarily
preclude the possibility that at some other time that day the deceased was able to
reveal to the police investigators the Identity of his assailant. In fact, this witness
stated on cross examination that on October 8, 1966, her husband could talk to
other persons. 3
In addition, it will be recalled that when the ante mortem statement was taken by
Cpl. Salaveria, there were several persons present, including relatives of the victim,
as well as the Acting Chief of Police who brought appellant from the jail to the
bedside of the victim. These police officers positively declared chat they were
present when the victim pointed to appellant as his assailant. No possible motive
has been advanced why these witnesses should falsely incriminate the appellant.
The next question that arises centers on the admissibility of the ante
mortem statement as a dying declaration so as to constitute an exception to the
hearsay rule. An ante mortem statement is a declaration made by a victim of a
homicide while about to die, and without any hope of recovery, concerning the facts
and circumstances under which the fatal injury was inflicted and offered in evidence
at the trial of the person charged with having caused the death of the declarant. 4
In order that a dying declaration may be admissible in evidence, four (4) requisites
must concur, to wit: (1) it must concern the crime and the surrounding
circumstances of the declarant's death; (2) at the time it was made, the declarant
was under a consciousness of an impending death; (3) the declarant was
competent as a witness at the time the same was executed; and (4) the declaration
is offered in a criminal case for homicide, murder or parricide in which the declarant
was the victim. 5
It is imperative, for a dying declaration to be admissible, that the same had been
made under a consciousness of impending death. 6 This is so because dying
declarations, made when the declarant had no more hope of recovery, are
admissible by reason of necessity and trustworthiness. Necessity because the
declarant's death renders impossible his taking the witness stand, and it often
happens that there is no other satisfactory evidence as to the cause of his death;
and trustworthiness because the declaration is made in extremity and every motive
of falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth. "A situation so solemn and so awful as to be
considered by the law as creating an obligation equal to that which is imposed by a
positive oath in a court of justice." 7
The fact that death of the declarant did indeed occur shortly after the declaration
was made is not sufficient to render the declaration admissible, absent the requisite
proof that the victim was under the consciousness of impending death at the time
the declaration was made, and he had no more hope of recovery. A belief in the
mind of the declaration, at the time the declarations are made, that death is near is
indispensable to the admission of such statements as dying declarations. Where
the text of the declaration shows that the deceased himself was in doubt as to
whether he would die or not, the dying declaration is not admissible. 8
In the instant case, the victim, when asked whether he believed he was going to die
as a result of his injuries, replied: "It all depends." Also, it appears from the records
that his condition had progressively improved from the time he was admitted to the
time the statement was taken by the police so much so that a short time thereafter
he was considered strong enough to undergo an operation. Under these
circumstances, it can be concluded that the deceased was, himself, hesitant to
accept the fact of his impending death and entertained hopes of recovery, obviously
depending on the result of the scheduled operation and further medical treatment.
Notwithstanding the fact, however, that the victim's statement may not be admitted
as a dying declaration, it is nevertheless admissible as part of the res
gestae against herein appellant. In People v. Tumalip, 9 this Court held that the
positive Identification of the accused by the victim, made a few hours after he had
been shot and while suffering from the agonies of his injuries, although not an ante
mortem declaration, may, however, be considered as part of the res gestae, for it
was made almost immediately after the startling occurrence.
It is well-settled that as an exception to the hearsay rule, such
evidence must comply with these requisites, an occurrence both
startling and unusual in character and an utterance made before
the declarant could have any opportunity for falsification or
distortion, one moreover limited to such event as the immediate
attending circumstances. 10
Briefly stated, the spontaneous declaration must have been made while the
nervous excitement caused by the startling occurrence was still working on the
declarant's mind. This may be a short time after the incident or some hours later, as
long as the influence of the startling occurrence still persists. What is important is
that the declarant must have had no opportunity to devise or contrive anything
contrary to the real facts that occurred. What the law distrusts is not after speech
but after thought. 11
There are no limits of time within which the res gestae can be
arbitrarily confined. These limits vary in fact with each particular
case. The acts or declarations are not required to be
contemporaneous with the primary fact, but they must be so
connected with it as to make the act or declaration and the main
fact practically inseparable, or be generated by an excited feeling
which extends, without break or let down, from the moment of the
event they illustrate. In other words, if the acts or declarations
sprang out of the principal transaction, tend to explain it, were
voluntary and spontaneous, and were made at a time so near it
as to preclude the Idea of deliberate design, they may be
regarded as contemporaneous in point of time, and are
admissible.12
The element of time is, therefore, not controlling, but merely of importance, on the
question of spontancity. 13
The general rule is that where declarations are unconsciously associated with and
related to the homicidal deed even though separated from it by a short time, they
are evidence of the character of the deed and a part of the res gestae. No inflexible
rule as to the length of the interval between the act of killing and the act of
declaration of the person killed can be formulated; in such matter, the facts of each
case stand alone and must speak for themselves. 14
From the circumstances of the case, the victim could not have had time to concoct
or devise a story different from what actually transpired, and his narration, at the
first opportunity, of the incident and his Identification of his assailant must be
considered as part of the starling occurrence, the influence of which was still
working on his mind. Moreover, it is significant that the victim did not name a
specific person, as his assailant was a person not familiar to him, but merely
described him as the one who followed him from the municipal building after an
altercation which arose when he (victim) accidentally stepped on appellant's wife
while she lay on the floor of the municipal building. Appellant has failed to advance
any reason or motive why the victim, who did not know him prior to the incident,
would Identify him as the perpetrator of the offense if this were not true. It must be
recalled that there were many persons sleeping in the municipal building and yet he
was singled out by the police, as a consequence of the series of events that
transpired, starting from the commotion that ensued when the victim accidentally
stepped on appellant's wife and appellant's suspicious actuations after he returned
to the municipal building. It was shortly after appellant's return that the police condition of mind that the culprit is precluded from a sober realization of the
received information of the stabbing of the victim. wrongfullness of the course of action about to be taken. 22

The lower court found that the crime was committed with the qualifying WHEREFORE, the decision appealed from is modified; appellant Teodoro Lanza is
circumstance of treachery and the aggravating circumstance of evident hereby found guilty of the crime of Homicide and sentenced to an indeterminate
premeditation, offset by the mitigating circumstance of passion and obfuscation, penalty ranging from EIGHT (8) YEARS and ONE (1) DAY of prision mayor, as
hence it imposed upon the herein appellant the penalty of reclusion minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion
perpetua, among others. We find no proof that evident premeditation and treachery temporal as maximum, with the accessory penalties provided by law. The awards of
accompanied the commission of the crime. P2,000.00 as civil indemnity, without subsidiary imprisonment, P2,000.00 as moral
damages and P500.00 as hospital and burial expenses are hereby affirmed.
Evident premeditation could not have existed because immediately after the
commotion caused by the accidental stepping on his wife, the appellant followed SO ORDERED.
the victim and stabbed him. As the trial court observed, the Shell gasoline station
where the victim was stabbed was "not far from the municipal building", 15 and, in
the few minutes it took to follow and overtake the victim, the appellant could not
have had sufficient opportunity to meditate upon and determine the killing. lt is
settled that where a previous incident preceded the assault, evident premeditation
is not present. 16 and that in the absence of reflection and persistence of criminal
intent, said circumstance cannot be appreciated.17

Similarly, treachery cannot be appreciated against the herein accused because

there is no showing whatsoever that the mode of attack employed by him was
calculated to insure the commission of the crime without risk to himself, arising from
any defense that the victim may put up. As a matter of fact, the mode of attack is
not known at all, there being no eyewitness to the stabbing incident. 18 Treachery
must be shown by convincing evidence, 19 and the same degree of proof to dispel
reasonable doubt is required before any conclusion may be reached respecting its
attendance, whether as a qualifying or an aggravating circumstance, in a criminal
case. 20 Moreover, consistent with the finding that the killing was not premeditated,
there can be no treachery in the instant case because the decision to attack was
arrived at on the spur of the moment. 21

In addition, the factual circumstances obtaining in the case indicate that the victim
knew that he was being followed from the municipal building. Thus, he was able to
state in the ante mortem statement that the person who stabbed him was the one
who had followed him from the municipal building. This being the case, and
considering that he was well aware of the previous altercation between them, the
victim must have been on his guard and aware that the appellant meant him harm.

Considering the foregoing, We hold that due to the absence of any qualifying
circumstance, the crime committed is not murder but homicide, defined and
penalized under Article 249 of the Revised Penal Code, unattended by any
aggravating or litigating circumstance.

We are not convinced that passion and obfuscation Should be appreciated in favor
of herein appellant so as to mitigate his criminal liability. The accidental stepping by
the victim on appellant's wife was insufficient cause for passion or obfuscation to so
affect appellant's reason that he commits a vicious crime as a result thereof. In
order for such mitigating circumstance to be appreciated, it is necessary to
establish the existence of an act both unlawful and sufficient to produce such a
 In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was
charged before the Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos,
Bulacan with the crime of robbery with homicide committed as follows:

That on or about the 31st day of January, 1978, in the municipality of

Baliuag, province of Bulacan, Philippines and within the jurisdiction of this
Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and
there wilfully, unlawfully and feloniously, with intent of (sic) gain and
without the knowledge and consent of the owner and, by means of
violence and intimidation, take, carry and cart away two (2) rings, one (1)
necklace, one (1) piece of earring, belonging to Arnedo Valencia y Angeles
and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the
sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the
occasion of the said robbery and for the purpose of enabling him to take
the said properties, the accused did then and there wilfully, unlawfully and
feloniously with treachery, evident premeditation and great advantage of
superior strength, with intent to kill, attack, assault and use personal
violence upon the person of Eulalia Diamse Vda. de Salac by stabbing
and hitting the latter on her neck and other parts of her body with pointed
instrument causing injuries which directly caused the death of the said
Eulalia Diamse Vda. de Salac.

That in the commission of the offense, the following aggravating

circumstances were present (1) abuse of superior strength; (2) committed
in the dwelling of the offended party; (3) disregard of age and sex; (4)
abuse of confidence.

Contrary to law. 1

At arraignment, appellant De Joya pleaded not guilty. After trial, the court a
quo rendered a decision dated 16 May 1986 convicting De Joya of the crime
charged. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered, finding the accused guilty

G.R. No. 75028 November 8, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PIOQUINTO DE JOYA y CRUZ, defendant-appellant.
beyond reasonable doubt of the crime of Robbery with Homicide,
committed with the aggravating circumstances of: abuse of superior
strength, old age, disregard of sex the victim a woman 88 years old, the
crime was committed in the dwelling of the victim. The accused being 72
years old death penalty cannot be imposed against him as provided in
Article 47 of the Revised Penal Code.

FELICIANO, J.: The Court therefore, sentences the accused to LIFE IMPRISONMENT; to
indemnify the heirs of the victim in the amount of P20,000.00 and to pay
damages in the amount of P550.00.
 The bond of the accused is ordered cancelled and the accused to be
confined immediately in the National Penitentiary pending review of his
case by the Supreme Court.
The Clerk of Court is ordered to immediately forward the record of this
case to the Supreme Court for review.
SO ORDERED. 2
In this appeal, appellant raises a number of issues all of which, however, amount to
one basic assertion: that the lower court erred in concluding that appellant was
guilty beyond reasonable doubt of the crime charged.
The facts have been summarized in the brief of the Solicitor General in the
following manner:
The spouses Arnedo Valencia and Herminia Salac-Valencia, together with
their ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year
old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag,
Bulacan. (TSN, June 11, 1981, p. 2). Both spouses are teachers by
profession.
Arnedo Valencia teaches at the Tiaong Elementary School at Barrio
Tiaong, Baliuag, Bulacan whereas Herminia Valencia teaches in an
intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7).
In the afternoon of January 31, 1978, Herminia Salac-Valencia left for
school to teach. Her mother Eulalia Diamse was then [sitting] at their sofa
watching the television set. (TSN, October 12, 1978, p. 3).
Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in
the afternoon, his classes were dismissed and he proceeded home. (TSN,
March 11, 1980, p. 8).
At around 3:00 o'clock in the afternoon of that same day, the spouses
Valencia's neighbor by the name of Gloria Capulong, together with a
friend, went out of the former's house to visit a friend. While at her yard,
Gloria Capulong looked back to the direction of the Valencia's house. She
noticed appellant Pioquinto de Joya standing and holding a bicycle at the
yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4).
When Alvin reached home, he saw his grandmother Eulalia Diamse lying
down prostrate and drenched with her own blood. He immediately threw
his bag and ran towards her. He then held her hands and asked her: "Apo,
Apo, what happened?". (TSN, March 11, 1980, p. 10).
. . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After
saying these words, she let go of Alvin's hand and passed away.
(TSN, Ibid., pp. 14 and 17).
Alvin then called for his Nana Edeng and told her to see his lola because
she was drenched with her own blood. His Nana Edeng told him to
immediately see his mother Herminia Salac-Valencia to inform her of what
happened. (TSN, Id).
Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is
drenched in her own blood." (TSN, March 11, 1980, p. 20).
Herminia immediately ran outside the school, flagged down a tricycle and
went home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she
reached their house, she found her mother lying prostrate in her own
blood at their sala in front of the television. Her mother's hands were
stretched open and her feet were wide apart. Blood was oozing out of her
mother's ears. She then embraced her mother and placed her on the sofa.
She asked Alvin and the tricycle driver to call Dr. Delfin Tolentino. (TSN,
October 12,1978, pp. 25-26).
Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and
examined the body of Eulalia Diamse. Said doctor declared that said
Eulalia Diamse had a heart attack which caused her death. When asked
by Herminia Valencia why her mother's ears were punctured, no reply was
given by said doctor. Herminia requested for a death certificate, but Dr.
Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp.
27-29).
Herminia found out that the two (2) gold rings worn by her mother were
missing. The right earring of her mother was likewise missing. All of these
were valued [at] P300.00 (TSN, Id., p. 15).
That same afternoon, Herminia saw the room of the groundfloor
ransacked. The contents of the wardrobe closet (aparador) were taken
out. Its secret compartment/box was missing. And the lock of the aparador
was destroyed. (TSN, October 12, 1978, pp. 15-17).
When she went upstairs after putting her mother on a bed at the ground
floor, she found the two (2) rooms thereat in disarray. She then caused the
rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to
"A-11"; TSN, October 12, 1978, p. 17).
Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to
issue a death certificate so that her mother could be embalmed. (TSN, Id.,
pp. 33-34).
On the same night, Herminia found a beach walk step-in (Exhibit "B") by
the side of the cabinet near the door of their room downstairs, more or
 less one meter from where the victim was lying prostrate. (TSN, October
12,1978, pp. 24-25).
Herminia was able to recognize the said step-in because of its color and
size, as the other half of the pair she bought for her husband Arnedo but
which she gave to Socorro de Joya, the wife of herein appellant, before
Christmas of 1977 when she saw the old and wornout pair of slippers of
the latter. (TSN, Ibid.).
Appellant Pioquinto de Joya visited the wake only once. During the
second day of the four-day wake, Herminia saw herein appellant Pioquinto
de Joya enter the kitchen and peep under the cabinet of the (Valencia's)
house. (TSN, Id.).
On February 3, 1978, a post-mortem examination was conducted by Dr.
Romulo Madrid, a medico-legal officer of the National Bureau of
Investigation. Per examination, the cause of the death arrived by Dr.
Madrid was "shock, secondary to punctured wound neck" (Exhibit "D-1")
situated at the right side of the neck, just below the right ear wherein it
went out thru and thru, opposite, almost in the same location, from one
side of the neck to the opposite side. (Exhibit "D-2").
In its decision, the trial court became quite clear as to the factors which led to the
judgment of conviction against appellant. These factors, as set out in the decision
of the trial court, were the following:
In the case at bar, the prosecution relied heavily on the circumstances
surrounding the death of the victim as testified to by the witnesses and
proven during the trial, also the dying statement of the deceased, which
are: Herminia testified that two weeks before the incident the accused and
the deceased quarreled over a bicycle which the former took from their
house without the consent of the latter; that Exhibit "B" (step-in beach walk
type) which was found near the cabinet one meter away from the body of
the victim was identified by Herminia as the step-in that she gave to the
wife of the accused and which she saw accused wearing on January 29,
1978 when she visited them in their house; the testimony of Gloria
Capulong that she saw the accused in the afternoon of January 31, 1978
at around 3:00 p.m. in the yard of Herminia standing and holding a bicycle;
the accused admitted, although his wife is the sister of the husband of
Herminia he never visited the deceased during the four days that it was
lying in state without any justifiable reason and contrary to the ordinary
experience of man; last but most convincing is the dying statement of the
deceased when her grandson Alvin asked her "Apo, Apo, what
happened?" and she answered, "Si Paki", then she expired. When Alvin
was asked during his testimony who is this Paki, he identified the accused.
The accused during his testimony never denied that he is called Paki.
The foregoing circumstances established during the trial plus the dying
statement of the deceased leads only to one fair and reasonable
conclusion, that the accused is the author of the crime.
Analyzing the above portion of the decision, the elements taken into account by the
court in convicting appellant De Joya of robbery with homicide may be listed as
follows:
1. The dying statement made by the deceased victim to her grandson
Alvin Valencia a 10-year old boy: "Si Paqui";
2. The quarrel, which, according to Herminia Valencia, daughter of the
deceased victim, took place two weeks before the robbery and homicide,
between the appellant and the deceased over the use of a bicycle which
appellant allegedly took from the Valencia's house without the consent of
the victim;
3. The rubber slipper, one of a pair, ("step-in beach walk type") which
according to Herminia, she found near a cabinet in their house one (1)
meter away from the body of the victim, and which Herminia identified as
one of the pair that she had given to the wife of the accused the previous
Christmas Season;
4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the
afternoon of 31 January 1978 in the yard of the Valencias, standing and
holding a bicycle and doing nothing;
5. The statement of appellant that he did not visit the deceased during the
four-day wake.
We turn first to the dying statement made by the victim when the 10-year old Alvin
Valencia asked his grandmother who was sprawled on the floor of their house
drenched with blood: "Apo, Apo, what happened?" The deceased victim said: "Si
Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is
the nickname of appellant Pioquinto de Joya. It must be noted at once, however,
that the words "Si Paqui" do not constitute by themselves a sensible sentence.
Those two words could have been intended to designate either (a) the subject of a
sentence or (b) the object of a verb. If they had been intended to designate the
subject, we must note that no predicate was uttered by the deceased. If they were
designed to designate the object of a verb, we must note once more that no verb
was used by the deceased. The phrase "Si Paqui" must, moreover, be related to
the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not:
"Apo, Apo, who did this to you?"
It has been held that a dying declaration to be admissible must be complete in
itself. To be complete in itself does not mean that the declarant must recite
everything that constituted the res gestae of the subject of his statement, but that
his statement of any given fact should be a full expression of all that he intended to
say as conveying his meaning in respect of such fact. 3 The doctrine of
completeness has also been expressed in the following terms in Prof. Wigmore's
classic work:
The application of the doctrine of completeness is here peculiar. The
statement as offered must not be merely apart of the whole as it was
expressed by the declarant; it must be complete as far it goes. But it is
immaterial how much of the whole affair of the death is related, provided
the statement includes all that the declarant wished or intended to include
in it. Thus, if an interruption (by death or by an intruder) cuts short a
statement which thus remains clearly less than that which the dying
person wished to make, the fragmentary statement is not receivable,
because the intended whole is not there, and the whole might be of a very
different effect from that of the fragment; yet if the dying person finishes
the statement he wishes to make, it is no objection that he has told only a
portion of what he might have been able to tell. 4 (Emphasis supplied)
The reason upon which incomplete declarations are generally excluded, or if
admitted, accorded little or no weight, is that since the declarant was prevented (by
death or other circumstance) from saying all that he wished to say, what he did say
might have been qualified by the statements which he was prevented from making.
That incomplete declaration is not therefore entitled to the presumption of
truthfulness which constitutes the basis upon which dying declarations are
received. 5
It is clear to the Court that the dying declaration of the deceased victim here was
incomplete. In other words, the deceased was cut off by death before she could
convey a complete or sensible communication to Alvin. The trial court
simply assumed that by uttering the words "Si Paqui", the deceased had intended
to name the person who had thrust some sharp instrument through and through her
neck just below her ears. But Eulalia herself did not say so and we cannot
speculate what the rest of her communication might have been had death not
interrupted her. We are unable to regard the dying statement as a dying declaration
naming the appellant as the doer of the bloody deed.
The other elements taken into account by the trial court are purely circumstantial in
nature. When these circumstances are examined one by one, none of them can be
said to lead clearly and necessarily to the conclusion that appellant had robbed and
killed the deceased Eulalia Diamse. The quarrel over the use of the bicycle which
was supposed to have taken place two weeks before Eulalia's death does not, in
our view, constitute adequate proof of a motive capable of moving a person to slay
another in such a violent and gory manner. Failure to prove a credible motive where
no identification was shown at all, certainly weakens the case of the prosecution.
The testimony of Herminia Valencia about the single slipper that she found near or
under the cabinet in the living room where Eulalia Diamse was slain, can scarcely
be regarded as conclusive evidence that such slipper was indeed one of the very
same pair of slippers that she had given to appellant's wife, who was also the sister
of Herminia's husband. Rubber or beach, walk slippers are made in such quantities
by multiple manufacturers that there must have been dozens if not hundreds of
slippers of the same color, shape and size as the pair that Herminia gave to
appellant's wife. And even if conclusive identification of the slippers had been
offered, and it is assumed that appellant (rather than his wife) had worn those very
slippers on that fatal afternoon, still the presence of that singular slipper did not
clearly and directly connect the appellant to the robbery or the slaying. At most,
under that assumption, the presence of that slipper in the house of the Valencias
showed that the accused had gone to the house of the Valencias and there mislaid
that slipper. We note in this connection, that appellant himself had testified that he
did enter the house of the Valencias that afternoon, but after the killing of Eulalia
Diamse had been perpetrated, and there had found many persons in the house
viewing the body.
The testimony of Gloria Capulong that she saw the accused in the afternoon of 31
January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a
bicycle and doing nothing is, by itself, not proof of any act or circumstance that
would show that appellant had perpetrated the slaying or the robbery. The
behaviour of the appellant, as testified to by Gloria Capulong, offers no basis for
supposing that appellant, himself 72 years of age, had just slain an 88-year old
woman by skewering her through the neck and had ransacked both floors of the
Valencia house.
Appellant's failure to present himself to pay his respects to the deceased or her
immediate family during the four-day wake, does not give rise to any inference that
appellant was the slayer of Eulalia Diamse. Appellant had explained that he had
been busily at work, sewing and carrying on his trade as a tailor. Appellant, as
already noted, had dropped in the Valencias' house in the afternoon Eulalia Diamse
was killed and had viewed the body (before it was lying in state) along with several
other persons. His reluctance or inability to participate in the formal wake is not
necessarily a sign of guilt. We are unable to agree with the trial judge that such
behaviour was "contrary to the ordinary experience of man" although respect for
the dead is a common cultural trait of the Filipinos.
In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against appellant included: "the attempt on the part of
appellant Pioquinto de Joya through his counsel to settle the case amicably." 6
We have examined the testimony
that the Solicitor General pointed to in referring to a supposed attempt to settle the
criminal charge amicably. That testimony, given by Arnedo Valencia, son-in-law of
the deceased Eulalia Diamse and brother-in-law of appellant Pioquinto de Joya,
was as follows:
Q You also testified that before the release of the accused from the
municipal jail, you had a conversation with him, is that right?
A Yes, air.
Q What was this conversation about?
A He called for me and took me to his counsel Atty. Aguilar and according
to him if only Atty. Aguilar can talk with me, everything will be settled.
Q Have you seen and talked to this Atty. Aguilar?
A Yes, I went with him to Manila, sir.
Q When was this?
A The time he was fetched out of jail.
Q You are referring to the municipal jail?
A Yes, sir.
Q What did you and Atty. Aguilar discuss when you finally was able to see
Atty. Aguilar?
A When I went there, I was introduced to Atty. Aguilar and Atty. Aguilar
asked me as to what I liked to happen.
Q What did you say?
A I said if it will be settled, well and good.
Q Anything else that transpired?
A He even told me if I might be able to convince both my wife and her
sisters.
Q Did he tell you he can settle this?
A He was very certain that he can settle this, the very reason why he told
me because I was very certain as to what happened.
Q Was the accused Pioquinto de Joya present when you were discussing
this with his lawyer?
A Yes, sir
Q He heard what his, lawyer was telling you?
A It is possible because he is only one or two meters distance away.
Q Did the accused say anything?
A None, sir. (Emphasis supplied)
We find the above testimony quite impalpable and inconclusive so far as a
supposed attempt of appellant, through his counsel, to offer a compromise on the
criminal charge is concerned. We are aware of the provision of Section 24 of Rule
130 of the Rules of Court which provides that
Sec. 24. Offer to compromise not admission. An offer of compromise is not
an admission that anything is due, and is not admissible in evidence
against the person making the offer. However, in criminal cases which are
not allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt.
(Emphasis supplied)
We do not, however, feel justified in concluding from the above testimony from a
member of the (extended) family of the deceased victim that "an offer of
compromise" had been made "by the accused" nor that "an implied admission of
guilt" on the part of the appellant may be reasonably inferred in the instant case.
The trial court itself made no mention of any attempt on the part of appellant to
settle the criminal case amicably through the defense counsel; we must assume
that the trial court either did not believe that appellant had tried to compromise the
criminal case or considered that appellant could not fairly be deemed to have
impliedly admitted that he had indeed robbed and killed Eulalia Diamse. A much
higher level of explicitness and specific detail is necessary to justify a conclusion
that an accused had impliedly admitted his guilt of a crime as serious as robbery
with homicide.
The totality of the case made out against appellant De Joya thus consists of an
incomplete, aborted, dying declaration and a number of circumstances which,
singly or collectively, do not necessarily give rise to a compelling inference that
appellant had indeed robbed and slain Eulalia Diamse. We consider, after
prolonged scrutiny, that the sum total of the evidence in the instant case is
insufficient to induce that moral certainty of guilt which characterizes proof beyond
reasonable doubt. The conscience of the Court remains uneasy and unsettled after
considering the nature and speculative character of the evidence supporting the
judgment of conviction.
The Court must, accordingly, hold as it hereby holds that appellant's guilt of the
crime of robbery and homicide was not shown beyond reasonable doubt.
ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby
REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds of
reasonable doubt.
It is so ordered.