[G.R. No. 113685. June 19, 1997] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

THEODORE BERNAL, JOHN DOE and PETER DOE, accused-appellants. DECISION ROMERO, J.: Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information[1] dated July 13, 1992, which reads as follows: That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against his will. CONTRARY TO LAW. A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses.[2] On the other hand, Theodore Bernal testified for his defense. The material facts and events as found by the court a quo are: It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them. After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was Payat.[3] When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him not to run because they were policemen and because he had an atraso or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latters mother of the abduction. The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernals wife Naty and this was the motive behind the formers kidnapping. Until now, Openda, Jr. is still missing. On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped. [4] On December 10, 1993, the court a quo rendered judgment[5] finding Bernal guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering.[6]

Bernal assails the lower court for giving weight and credence to the prosecution witnesses allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt. We find no compelling reason to overturn the decision of the lower court. The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims bodies. Article 267 of the Revised Penal Code provides thus: ART. 267. - Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. For the charge of kidnapping to prosper, the deprivation of the vict ims liberty, which is the essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals as shown by their concerted acts evidentiary of a unity of thought and community of purpose.[7] Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.[8] The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr. The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to Tarsings Store to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latters presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernals companions. Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at Tarsings Store on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave,

after which, two men came to the store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was handcuffed and taken away by the unidentified men. Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernals wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty not to do it again because she (was) a married woman.[9] Undoubtedly, his wifes infidelity was ample reason for Bernal to contemplate revenge. Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.[10] Openda, Jr.s revelation to Enriquez regarding his illicit relationship with Bernals wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.: Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants own interest, that a reasonable man in hi s position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons. With the deletion of the phrase pecuniary or moral interest from the pr esent provision, it is safe to assume that declaration against interest has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal.[11] A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true.[12] Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence[13] because no sane person will be presumed to tell a falsehood to his own detriment.[14] In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that the latter could not have seen the actual handcuffing because Tarsings Store could not be seen from the billiard hall. Sagarinos testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed. "Q The three of them together? A Q A Q A Q A Yes, sir. And what about you, where did you stay? I just stayed in the billiard hall. While you stay (sic) in the billiard hall, after a while, what did you see next? The two came back. Who were these two whom you said who (sic) came back? The companions of Bernal.

Q A

And what did these two men do? They apprehended Jun-jun Openda.[15]

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly rejected this argument by holding that: But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two companions to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road.[16] If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated: "Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct? A Yes, sir, because I was still in the store.[17]

On the other hand, Sagarino averred that: "Q When Theodore Bernal left the place, how long (sic) were you able to see him again? A Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came. Do you know where this Bernal from? (sic) He was coming from outside. He has with him his son? He was with nobody, sir. Are you sure of that? Yes, sir. He was alone? Yes, sir.[18]

Q A Q A Q A Q A

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino.[19] Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana on board a patrol car asking for

Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned. "Q - Minutes later do you know what happened? "A - They came back. "Q - What did you do after they came back? "A - I asked these police officers if they found these (sic) persons they were looking (for)? "Q - What was their answer? "A - They answered in the negative. "Q - Since the answer is in the negative, what did you do? "A - I asked the police officers why they were looking for these persons.(?) "Q - What was the answer of the policemen? "A - The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers.[20] Bernals position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous. The trial court correctly appreciated the testimony of Sagarino, it being free from any illmotive against Bernal. If the latters allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was, however, made. The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. The court said that Sagarinos forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.[21] This Court once again finds occasion to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses. [22] We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead. Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum penalty, however , " it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods in to which it may be subdivided."[23] Consistent with this ruling, this court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum. WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision dated November 18, 1993, is AFFIRMED in toto. Costs against accused-appellant Theodore Bernal.

SO ORDERED. [G.R. No. 121998. March 9, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORICO CLEOPAS and FLORENCIO PIRAME, accused. FLORENCIO PIRAME, accused-appellant. Kyle DECISION QUISUMBING, J.: On appeal is the decision dated January 5, 1995, of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Case No. 8343 finding the accused Teodorico Cleopas and Florencio Pirame guilty of murder beyond reasonable doubt.[1] The facts of the case, as found by the trial court, are as follows: "The factual findings of the Court based on the testimony of the witnesses for the prosecution and the defense are, as follows, to wit: a) That in the morning of March 18, 1993 near the house of Demetrio Cleopas, father of the accused Teodorico Cleopas and Epifanio Cleopas at Barangay Tubog, Ubay, Bohol, the eye-witness Cipriano Supero saw the victim in the instant case Pedro Torrenueva while being held by the accused Florencio Perame (sic) the accused Epifanio Cleopas struck him with an iron pipe and by the accused Teodorico Cleopas with a piece of wood, hitting the aforementioned victim Pedro Torrenueva on the forehead, which, as a consequence, fell on the ground dead; b) That to cover the discovery of the commission of the crime the dead body of the victim Pedro Torrenueva was buried in the well near the house of Demetrio Cleopas father of the accused Epifanio Cleopas who is still at large and the accused Teodorico Cleopas; c) That the testimony of the other witnesses for the prosecution SPO2 Sabeniano Atopan, Candida Cosip, Evelyn Torrenueva and Pedro Acquiat viewed in their totality with the testimony of the eye-witness Cipriano Supero points to the accused Teodorico Cleopas, Epifanio Cleopas and Florencio Pirame as the perepetrators (sic) of the crime as charged."[2] On May 13, 1993, the three accused, Teodorico Cleopas, Epifanio Cleopas and Florencio Pirame, were charged with the crime of murder under the following information: "That on or about the 18th day of March, 1993, in the municipality of Ubay, province of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring, confederating and mutually helping one another, with intent to kill, armed with stainless pipe and a piece of wood, with treachery, evident premeditation and abuse of

superior strength, did then and there willfully, unlawfully and feloniously, attack, assault and strike one Pedro Torrenueva who was unarmed and unaware thereof with the said stainless pipe and piece of wood thereby inflicting fatal injuries on the different parts of the victims body which resulted to his immediate death; to the damage and prejudice of the heirs of the deceased to be proved during the trial of the case. Acts committed contrary to the provisions of Art. 248 of the Revised Penal Code."[3] Kycalr Upon arraignment, Florencio Pirame and Teodorico Cleopas entered a plea of not guilty. Epifanio Cleopas was not arraigned, being at large.[4] Thereafter, trial on the merits ensued. The prosecution presented the following witnesses: (1) SPO2 Sabiniano Atupan, who led the police team that conducted the investigation of the killing; (2) Dr. Arnold Cagulada, the Municipal Health Officer of Ubay, Bohol, who examined the cadaver of the victim; (3) Candida Cusip,[5] an aunt of the victim, who testified why the victim ventured towards the house of accused Teodorico Cleopas on the day of the incident; (4) Evelyn Torrenueva, the wife of the victim, who corroborated the testimony of Cusip and testified as to the damages incurred by her due to her husbands death; (5) Pedro Acquiat, who joined the police in the search for the victims body; and (6) Cipriano Supero, the alleged eyewitness to the killing who identified all the three accused as the victims assailants. In turn, the defense presented accused Teodorico Cleopas and appellant Florencio Pirame, who both testified on their behalf. On January 5, 1995, the Regional Trial Court of Tagbilaran City, Branch I, rendered its decision finding Teodorico Cleopas and Florencio Pirame guilty of the crime of murder. It disposed: "PREMISES CONSIDERED, the Court finds the accused Teodorico Cleopas and Florencio Pirame guilty of the crime of Murder punished under Article 248 of the Revised Penal Code and hereby sentences each one of them to suffer an imprisonment of RECLUSION PERPETUA, with the accessories of the law and to pay the cost. The accused Teodorico Cleopas and Florencio Pirame are further ordered to indemnify the surviving spouse of the deceased victim Pedro Torrenueva in the amount of Fifty Thousand Pesos (P50,000.00) each and the amount of Twenty Three Thousand Two Hundred Forteen (sic) Pesos (P23,214.00) representing burial and incidental expenses and Fifty Thousand Pesos each (P50,000) representing moral and exemplary damages and in all instances without subsidiary imprisonment in case of insolvency. Calrky It appearing that the accused in the instant case Teodorico Cleopas and Florencio Pirame have undergone preventive imprisonment they are entitled to the full time of their preventive imprisonment to be deducted from their term of sentence if they have executed a waiver otherwise they will only be entitled to 4/5 of the time they have undergone preventive imprisonment to be deducted from their term of sentence if they have not executed a waiver.

The foregoing separate Decision does not affect the accused Epifanio Cleopas who is still at large who will be tried separately as soon as he shall have been arrested. SO ORDERED."[6] Only Florencio Pirame appealed from the decision of the trial court. He assigns the following errors in his brief: "I THE TRIAL COURT COMMITTED GRAVE ERROR IN RELYING ON THE WEAKNESS OF THE DEFENSE EVIDENCE RATHER THAN ON THE STRENGTH OF THE EVIDENCE FOR THE PROSECUTION IN FINDING THE ACCUSED-APPELLANT PIRAME GUILTY OF MURDER BEYOND REASONABLE DOUBT. II THE TRIAL COURT COMMITTED GRAVE ERROR IN GIVING CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESSES CIPRIANO SUPERO AND CANDIDA CUCIP IMPLICATING ACCUSEDAPPELLANT FLORENCIO PIRAME IN THE CRIME OF MURDER DESPITE THEIR MANIFEST UNBELIEVABLE, IMPROBABLE AND UNRELIABLE TESTIMONY."[7] In his brief, appellant alleges that the declaration of Demetrio Cleopas, both in the course of police investigation and in a sworn statement, to the effect that his two sons were responsible for the killing did not make any mention of him, hence, he should not have been implicated. Such declaration, appellant contends, as made in the sworn statement, should have been considered by the trial court as part of the res gestae. In addition, he urges that the trial court should have considered the testimony of accused Teodorico Cleopas, who testified that he did not see appellant on the date of the incident. He also contends that contrary to the trial courts view, there was no "uniting point" or corroboration between the testimonies of Cipriano Supero, the alleged eyewitness to the incident, and that of the other prosecution witnesses. Superos testimony, he further claims, should not have been considered by the trial court as this witness was a coached and rehearsed witness, who testified only two months after the incident, and whose testimony is allegedly not worthy of belief. Appellant also asserts that while he invokes the weak defense of alibi, the evidence against him is likewise weak, and did not prove his guilt beyond reasonable doubt. Lastly, appellant contends that the trial court erred in finding him to be a co-conspirator of the other two accused. Mesm In its brief, the Office of the Solicitor General contends that the positive identification by prosecution witness Cipriano Supero of appellant at the scene of the crime should prevail over appellants denial and alibi. It further argues that a conspiracy to kill the victim was present. Taken together, these contentions of appellant and the appellee point to one issue, which is the credibility of witnesses in this case. We find that credibility preponderates in favor of the prosecution, and against the appellant.

Appellant makes much of the testimony of prosecution witness SPO2 Atupan. This witness testified that in the course of police investigation, Demetrio Cleopas, father of accused Teodorico and Epifanio Cleopas, said that his two sons were responsible for the killing. Demetrio reiterated the same allegation in a sworn statement made before the Ubay Police on March 24, 1993,[8] which appellant also relies upon to support his claim of innocence. This particular allegation in the sworn statement, appellant urges, should be considered as part of the res gestae, as it "grew out of the main fact, shed light upon it, and which are (sic) unpremeditated, spontaneous, and made at a time so near, subsequent to the main act, as to exclude the idea of deliberation and fabrication."[9] This assertion made by Demetrio Cleopas in his sworn statement is not part of the res gestae. Res gestae refers to those exclamations and statements made by either the participants, victims, or spectators immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. [10] The allegations made by Demetrio Cleopas in his sworn statement were not made immediately after the killing of the victim. They were made on March 24, 1993, or six days after the killing of the victim on March 18. As we have held that a statement given a day after the incident in answer to questions propounded in an investigation cannot be considered part of the res gestae,[11] so too with the declarations of Demetrio Cleopas in his sworn statement. Scslx Moreover, resort to the very sworn statement invoked by appellant would reveal that Demetrio Cleopas himself was in no position to identify all the perpetrators of the crime. The pertinent portion of the statement reads as follows: "Q:.....Do you remember where were you on March 18, 1993? A:.....Yes, I was in our nipa hut near our house. Q:.....What were (sic) the unusual incident that you have witnesses (sic) on that day: (sic) A:.....On March 18, 1993 at 10:00 oclock in the morning more or less, I heard a shout from my wife thats why I went near to her and what I have seen was a man lying on the ground which in my belief was already dead. Q:.....What was the cause of death of that person? A:.....When I asked my son Epifanio Cleopas alias Paning what wa s that incident and he answered that they mutually struck him because he boxed one on (sic) my son named Teodorico Cleopas @ Tidoy."[12] It is clear that Demetrio Cleopas did not see the actual killing of the victim. He only learned of the details of the killing from his son Epifanio. Thus, SPO2 Atupans testimony that Demetrio Cleopas named his sons as the perpetrators of the crime, without mention of appellant Florencio Pirame, and which declaration was based on Epifanio Cleopas admission of guilt for the killing, is in effect hearsay twice removed. It cannot be used to absolve appellant of his participation in the crime. Further still, the testimony of accused Teodorico Cleopas that he never saw appellant on the date of the incident,[13] does not support the declarations of Demetrio Cleopas, as Teodoricos testimony cannot be expected to implicate a co-accused, being self-serving as it is. Slxs c

Appellant next assails the trial courts dictum to the effect that the testimonies of the prosecution witnesses, viewed in their totality, point to the guilt of all three accused, including appellant.[14] He claims that it was only Cipriano Supero who testified that he saw appellant hold the arms of the victim while the other two accused hit him on the head with a stick and a steel pipe. This, he asserts, was not corroborated by any other prosecution witness, hence there was no "unifying point" in their testimonies. That the testimony of Supero was not corroborated by any other witness is of no moment. It is axiomatic that the testimonies of witnesses are weighed, not numbered, and the testimony of a single witness may suffice for conviction if found trustworthy and reliable. That the prosecution had only one eyewitness to implicate appellant hardly negates its cause. There is no law, which requires that the testimony of a single witness needs corroboration except where the law expressly mandates such corroboration.[15] Indeed, the testimony of a single witness, when positive and credible, is sufficient to support a conviction even of murder. Hence, a finding of guilt may be based on the uncorroborated testimony of a single witness when the trial court finds such testimony positive and credible.[16] On this score, appellant contends that the testimony of Cipriano Supero should not have been considered by the trial court, as Supero is allegedly a coached and rehearsed witness. In effect, appellant assails Superos credibility. He points out that on direct examination, Supero initially stated that the killing took place "inside the house of Demetrio Cleopas", but later on modified his answer to clarify that the victim was killed "outside the house." [17] In addition, appellant emphasizes that it took Supero two months after the death of the victim to come out and volunteer to testify as to what he had seen transpire on the morning of March 18, 1993. Appellant asserts that this delay further proves that Supero was a rehearsed witness. slx mis These contentions are without merit. The initial lapse in Superos testimony as to whether the crime was committed inside or outside of the house of Demetrio Cleopas was eventually settled by the trial court when it asked clarificatory questions. Supero was nonetheless able to testify on the actual killing of the victim, as well as identify all the perpetrators of the crime. The earlier inconsistency in his testimony, slight as it is, cannot suffice to impeach this witness. Settled is the rule that inconsistencies in the testimonies of witnesses when referring only to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. Although there may be inconsistencies on minor details, the same do not impair the credibility of the witnesses where there is consistency in relating the principal occurrence and positive identification of the assailants. Slight contradictions in fact even serve to strengthen the sincerity of the witness and prove that his testimony is not rehearsed. They are safeguards against memorized perjury. [18] Further still, the delay of Supero in volunteering to testify on the incident is of little consequence. At the time Supero witnessed the killing, all he saw was the striking of the victim by the assailants while appellant held the victims arms. The victim then fell to the ground, motionless. Thereafter, Supero left, fearful of what he had seen.[19] He did not divulge this to anyone else except his mother, for they were afraid of being involved in the matter.[20] At the time he witnessed the incident, Supero was not aware that the victim had died as a result of the assault. He came to know that the victim died only two months after, when word spread that the body of the victim was discovered in the well of Demetrio Cleopas. [21] Upon learning of the victims fate, he cam e forward to reveal what he had seen when he testified in open court. Hence, appellant cannot claim that Superos report and testimony on the incident was belatedly made. Thus, the two-month delay in reporting the account of the eyewitness in this case does not give rise to any doubt on the veracity thereof. As we have held, the belated report and the reluctance of witnesses to testify in criminal actions is a matter of judicial notice.[22] Missdaa

Against Superos positive identification of appellant as the person who held the hands of the victim while accused Teodorico and Epifanio Cleopas struck him, appellant advanced the defense of alibi. He testified that he was harvesting palay the whole day at Barangay Corazon, San Miguel, Bohol on March 18, 1993.[23] The distance of the house of Demetrio Cleopas from his house, which is located at the center of Barangay Corazon, [24] was estimated by him to be seven kilometers.[25] We find this distance of seven kilometers to be less than sufficient for purposes of an air-tight alibi. Alibi is an affirmative defense and, considering that it is easy to concoct, when an accused relies thereon, he has the burden of proving it, i.e., that he could not have been at the scene of the crime at the time of its commission. For alibi to prosper, an accused must prove that not only was he absent at the scene of the crime at the time of its commission, but also that it was physically impossible for him to be so situated at said instance.[26] This, appellant failed to do, more so when his claim that he was harvesting palay on the day the killing took place was not corroborated by anyone else. Appellant asserts that the trial court erred in finding appellant a conspirator, hence guilty of murder beyond reasonable doubt. We find the trial courts findin g of the existence of a conspiracy to kill the victim well-taken. Cipriano Superos testimony discloses that appellant held the victims arms in a cross-wise manner while Epifanio and Teodorico Cleopas struck the victim on the forehead with a steel pipe and a long piece of wood, respectively. Thereafter, the victim fell to the ground.[27] These concurrent actions of appellant and his co-accused reveal a mutual intention and determination to kill the victim, an indicator of conspiracy. Conspiracy, in order to exist, does not require an agreement for an appreciable period prior to the commission of the crime; it exists if, at the time of the commission of the offense, the accused had the same purpose and was united in its execution. [28] The fact that appellant conspired in the commission of the crime charged was sufficiently and convincingly shown by his active participation in holding the victim to render him immobile, thus enabling the other two accused to consummate their dastardly act of killing the victim. [29] We note, however, that the trial court in its decision did not make any definitive finding on the circumstances which qualified the crime to murder. While the information charging appellant and the other accused alleged that the commission of the crime was attended by treachery, evident premeditation and abuse of superior strength, the court did not expound upon or point to the existence of these aggravating circumstances in the case at bar. In other words, it did not state its basis for qualifying the crime to murder. We are thus required to determine if the crime at bar could be qualified to murder, to resolve this appeal. It is axiomatic that an appeal, once accepted by this Court, throws the entire case open to review, and that this Court has the authority to review matters not specifically raised or assigned as errors by the parties, if their consideration is necessary in arriving at a just resolution of the case. [30] Sda adsc In the present case, the prosecution alleged the attendance of treachery in the commission of the crime. The requisites for treachery to be a qualifying circumstance are: (1) the employment of means, method, or manner of execution which will ensure the safety of the malefactor from defensive or retaliating acts on the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (2) deliberate or conscious adoption of such means, method, or manner of execution.[31] Cipriano Supero testified that appellant Florencio Pirame held the arms of the victim while Epifanio and Teodorico Cleopas struck the victim on the head, causing his death. The victim was defenseless during the attack as his hands were restrained by appellant, facilitating the beating of the victim by the other perpetrators. Clearly, the manner by which the victim was restrained and assaulted was deliberately and consciously adopted by his assailants to ensure his demise. Thus, there was treachery in the killing of the victim, as the offenders employed means, methods or forms in the execution thereof which tended directly and specially to insure its execution, without risk to themselves arising from the defense which the victim might take.[32]

The attendance of evident premeditation in the commission of the crime, though alleged in the information, is not supported by the evidence, as there is no showing as to when appellant and his co-accused determined to kill the victim. Likewise, abuse of superior strength, being absorbed by treachery,[33] cannot be considered as an aggravating circumstance in this case. As treachery was present when the victim as killed, we find that the crime of murder was committed by appellant and his co-accused. At the time of the commission of the crime, the imposable penalty for murder was reclusion temporal in its maximum period to death. There being no aggravating or mitigating circumstances attending the killing, the applicable penalty would thus be the medium period of the imposable penalty, which is reclusion perpetua.[34] Rtc spped We concur with the trial courts award of P50,000.00 each from appellant Florencio Pirame and co-accused Teodorico Cleopas as death indemnity to the victims heirs, which is in line with current jurisprudence. We also find the amount of P23,214.00 awarded by the trial court as "burial and incidental expenses" supported by the records.[35] The award of P50,000.00 from each accused as moral and exemplary damages, however, is unsupported. The widow of the victim did not testify on any mental anguish or emotional distress, which she suffered as a result of her husbands death. The absence of any generic aggravating circumstance attending the crime likewise precludes the award of exemplary damages. WHEREFORE, the instant appeal is DENIED. The decision of the Regional Trial Court convicting appellant Florencio Pirame of the crime of murder and sentencing him to reclusion perpetua, and to pay the widow of the victim P50,000.00 as civil indemnity and P23,214.00 as actual damages, as well as the costs is AFFIRMED, but the award of P50,000.00 as moral and exemplary damages is hereby DELETED, there being no legal and factual basis therefor. [G.R. No. 123860. January 20, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN NAAG y ROQUE and JOSELITO ALCANTARA, accused. EDWIN NAAG y ROQUE, accused-appellant. DECISION MENDOZA, J.: Kortex This is an appeal from the decision,[1] dated November 15, 1995, of the Regional Trial Court, Branch 72, Olongapo City, finding accused-appellant Edwin Naag y Roque guilty on two counts of murder aggravated by abuse of superior strength and sentencing him to suffer two terms of reclusion perpetua. Accused-appellant was ordered to pay the heirs of the deceased P38,000.00 for the funeral expenses, P100,000.00 for moral damages, and the costs. The antecedent facts are as follows: In an amended information, dated January 9, 1991, accused-appellant Edwin Naag y Roque was charged, together with Joselito Alcantara, with two counts of murder allegedly committed as follows:[2]

That on or about the fifteenth (15th) day of November, 1990, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another armed with a knife and with intent to kill, did then and there wilfully, unlawfully and feloniously assault, attack and stab therewith spouses Atty. Rodrigo Fontelera, Sr. and Rosita Fontelera, with treachery and evident premeditation, and as a result thereof, said spouses Rodrigo and Rosita Fontelera suffered multiple stab wounds, which directly caused their death shortly thereafter, to the damage and prejudice of the members of the family and relatives of said spouses. All contrary to law and with the qualifying circumstance of evident premeditation. Only accused-appellant was arrested and tried. The other accused, Joselito Alcantara, remained at large.

Lungs: Left lower lobe - 1 STW, 1 cm. right lobe with adhesions. Liver - 1 cm STW at the right lobe. Stomach: Full of undigested food, no alcoholic odor. Cause of Death: Hypovolemic Shock due to Multiple Stab Wounds The autopsy report (Exh. G)[4] on Rosita Fontelera, on the other hand, reads: This is a body of a 54 year old female, Filipino, Hypersthenic in body built, measuring about 4 feet and 11 inches in length, not yet rigid post mortem. FINDINGS

The evidence for the prosecution consisted of the autopsy reports and testimony of Dr. Richard Patilano, medico-legal officer of Olongapo City, the dying declarations of Rosita Fontelera, and accusedappellants extrajudicial confession. Dr. Patilano conducted autopsies on the victims in the evening of November 15, 1990 and prepared reports. His autopsy report (Exh. F)[3] on Rodrigo Fontelera, Sr. is as follows: This is a body of a 60 year old male, Filipino, Sthenic in body built, measuring about 5 feet and 2 inches in length, not yet rigid post mortem. FINDINGS Lips and nailbeds: pale Sclaw Stab Wounds: 13 Stab wounds over the face and neck areas. Most of the stab wounds were 1.5 cm in length with one extremity being sharp, mostly oriented at vertical position. The ones at the right lateral side of the neck severed the right jugular blood vessels. 8 stab wounds were located at the back of the head and at the nuchal area of the neck. The ones at the head were at horizontal orientation while those at the nuchal area were vertically oriented. STWs ranged from 1 cm to 3.5 cm in length, only one extremity was sharp. 6 STWs were located at the right side of the chest and abdominal areas, ranging from 0.5 cm to 3 cm in length, vertical or left oblique in orientation, only one extremity was sharp. 6 STWs were located at the back, most of the STWs were oriented at horizontal direction, mostly 1.5 cm long, one extremity sharp. 4 STWs were located at the posterior aspect of the left upper extremity, ranging from 0.5 cm to 1.5 cm long, mostly at vertical orientation, only one sharp extremity, 3 STWs were located at the antero-lateral aspect of the left arm, mostly were at vertical orientation, one extremity was sharp. 6 STWs were located at the right arm and forearm, posterior aspect, mostly were at vertical orientation with an average length of 1.5 cm. (Total STWs - 46) Incised wounds: 1.5 cm over the distal phalanx, 2nd finger, right hand, posterior aspect; 1.5 cm over the distal phalanx, posterior aspect, 3rd finger, right hand, all were at horizontal orientation.

Lips and nailbeds: pale Sclex Stab Wounds: 3 cm in length, sharp extremity directed towards the left, oriented at horizontal position, located at the right upper chest, 4th interspace, midclavicular line, directed backward and to the left, making a 1.5 cm STW at the right side of the heart which progressed into the right auricle causing massive bleeding with the left thoracic cavity; 2 cm, oriented horizontally, located at the right lower chest wall, arrested by the 6th right rib, sharp extremity directed leftward; 1.5 cm sharp extremity directed upward and to the left, oblique orientation, located at the right hypochondriac area resulting to 0.5 cm STW of the right lobe of the liver; 2.5 cm left oblique in orientation with sharp extremity directed upward and to the left, located at the left side of the abdomen; 1.5 cm horizontally oriented, located at the right upper back, bone-deep; 1.5 cm horizontally oriented, located at the right back, over the right scapula, bone-deep; 3.5 cm horizontally oriented, sharp extremity directed towards the left, progressed beneath the right scapula, inferior margin, making a 2 cm STW at the inferior margin of the right lung. Incised wound: 6 cm, skin-deep over the upper third, posterior aspect, right arm; 2.5 cm left oblique in orientation located over the distal third, artero-medical aspect, left forearm. Stomach: Full of undigested food, no alcoholic odor. Cause of Death: Hypovolemic Shock Due to Multiple Stab Wounds Dr. Patilano testified[5] that most of the 46 stab wounds inflicted on Rodrigo Fontelera, Sr. were fatal; that he was of the opinion that only one person frontally stabbed Fontelera, Sr., but "as [the stab wounds at the back] have different orientations," he could not tell how many stabbed Fontelera, Sr. With regard to Rosita Fontelera, Dr. Patilano testified that she suffered fewer stab wounds than her husband and that, from the nature of her wounds, she (Rosita Fontelera) did not die immediately.

Dr. Patilano said that both victims were stabbed by means of a pointed, but not double bladed, instrument. However, he could not tell if only one instrument was used in stabbing the victims. The second prosecution witness was Eufracio Banal, a member of the Scriptures Baptist Church. He testified[6] that on November 15, 1990, at around 5 p.m., while he was checking the sound system in his church, one of his churchmates, Angie Dizon, came rushing in and told him that Rosita Fontelera was at the "Siesta Pizza," which Angie owned, in need of urgent help. Banal said he followed Angie Dizon, and he found Rosita Fontelera lying on the pizza parlors floor, seriously wounded. While they were lifting her up in order to take her to the hospital, she said, "Si Edwin, si Edwin," twice. Rosita Fontelera died on arrival at the hospital. According to Banal, he did not know accused-appellant and only came to know him as the "Edwin" whom Rosita Fontelera referred to when he saw accused-appellant in court. Earlier, on November 16, 1990, Banal gave a sworn statement (Exh. Q)[7] about the final words of Rosita Fontelera. PO3 Ramon Fernandez testified[8] that he was the one who took down the statement of Eufracio Banal. Xlaw Pfc. Leo Batinga, another police investigator at the Olongapo Police Station, also testified.[9] He said that he received a telephone report of the incident at 6:20 in the evening of November 15, 1990. Together with other police officers, he proceeded to the victims residence at No. 21 21st Street, East Bajac-Bajac, where they found the body of Rodrigo Fontelera, Sr. with multiple wounds. They also found on the top of the lavatory a kitchen knife with a brown handle. A worker at the "Siesta Pizza," Mercy Salapanti Seballa, told them that Rosita Fontelera four times said "Edwin, taga-Novaliches" as she stumbled into "Siesta Pizza," seriously wounded. Pfc. Batinga said he had asked the son of the victims, Rodrigo Fontelera, Jr., if he knew "a certain Edwin from Novaliches," and was told that Edwin is accused-appellant who was their former caretaker; that on orders of their station commander and then Olongapo City Mayor Richard Gordon, he and his fellow police officers went to accused-appellants house in Aguardiente, Novaliches, but accused appellant was not there; that they later learned that accused-appellant had been arrested by the barangay tanod of Aguardiente, Novaliches; that accused-appellant was taken to Olongapo City; that there accused-appellant admitted to them that he was one of the assailants of the Fonteleras. Accusedappellant executed a waiver (Exh. A)[10] relative to his warrantless arrest and subsequent detention. Atty. Norberto de la Cruz was the lawyer who signed accused-appellants confession (Exh. O)[11] as assisting counsel. He testified[12] that on November 16, 1990, he was at the La Paz Batchoy Restaurant in front of the police station, when Pfc. Leo Batinga and Lt. Esteban showed him a "ready-made sworn statement, a sort of confession" of accused-appellant which they asked him to sign, as assisting counsel. According to Atty. De la Cruz, while accused-appellant said he had voluntarily executed the same, he (Atty. De la Cruz) nevertheless insisted that another investigation be conducted in his presence. According to Atty. De la Cruz, prior to the questioning by the police, he asked accused-appellant in the latters native Bicol dialect whether he had been forced or intimidated to confess and the latter answered in the negative, and said "never mind" when Atty. De la Cruz told him he could be imprisoned as a result of his confession. The investigation was then conducted by Pfc. Batinga who typed accusedappellants answers to the questions of the investigator. Aside from him, the other one present at the investigation was Lt. Esteban. Atty. De la Cruz said that, before signing, he read the confession (Exh. O). As the opening statement did not state that the confession was taken in his presence, he called the attention of the police investigators to the omission, but he was told "Never mind, anyway your name is at the bottom." He therefore signed the confession (Exh. O), which he later identified as the following:[13] Xsc SALAYSAY NI EDWIN NAAG NAIBINIGAY KAY PFC LEO BATINGA SA TANGGAPAN NG TAGAPAGSIYASAT NG KAGAWARAN NG PULISYA LUNGSOD NG OLONGAPO NITONG IKA-16 NG NOBYEMBRE 1990 SA GANAP NA ALAS 4:30 NG HAPON SA HARAP NI P/LT ESTEBAN:

x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-xx-x-x-x-x-x-x-x-x LAYUNIN :......Ang imbistigasyon ito ay may kaugnayan sa pagpatay sa magasawang ATTY RODRIGO FONTELERA at Gng Rosita Fontelera na naganap kahapon ika-15 ng Nobyembre 1990 mga alas 5:20 ng hapon sa kanilang bahay na nasa 21-21st. EBB, Olongapo City, naiintindihan mo? SAGOT :........Opo. PAALALA :......Bago tayo magsimula, nais kong ipagbigay alam sa iyo na sa Ilalim ng ating Saligang Batas, ikaw Edwin ay may mga KARAPATAN ng mga sumusunod: (1)......KARAPATAN mong manahimik, magbigay o huwag magbigay ng ano man salaysay. Ihinto ng ano mang oras ang imbistigasyon ito; (2)......KARAPATAN mong kumuha ng abogado na tutulong sa iyo at kung hindi mo kaya, magbibigay kami at ito ay walang bayad; (3)......Ang sasabihin mo ay maaaring gamitin ng PANIG o LABAN sa iyo sa alin mang hukuman dito sa Pilipinas; Scx TANONG :......Ngayon masabi namin sa iyo ang LAYUNIN pati na ang iyong mga KARAPATAN, ito ba ay iyong nauunawan o naiintindihan? SAGOT :......Opo. TANONG :......Nais mo pa rin bang ipagpatuloy natin ito? SAGOT :......Opo. 01........T:......Ang buo mong pangalan at mga bagay hingil sa tunay mong pagkatao? ......S:......EDWIN NAAG Y ROQUE, 21 anyos, binata, laborer at nakatira sa Agua Fiente Forest Hill Subd. Novaliches, Quezon City. 02........T:......Kung ikaw ay nakapagaral, anong grado ang inabot mo at eskuwelahan? .S: ......High School Graduate, Novaliches High School. 03.......T: ......Nakakaintindi ka at nakakabasa ng wikang tagalog?

......S:......Opo 04.......T:......Marunong kang sumulat ar bumasa? Scmis ......S:......Marunong po 05.......T:......Kailan ka dumating ng Olongapo City? ......S:......Kahapon mga alas 5:00 ng hapon ika-15 ng Nob. 1990. 06.......T:......Saan ka naman galing? ......S:......Sa Novaliches po. 07.......T:......Anong oras kang umalis sa Novaliches? ......S:......Mga alas 2:00 ng hapon. 08.......T:......Sino naman ang kasama mong dumating sa Olongapo kahapon ika15 ng Nobyembre 1990 ng hapon? ......S:......Sina Joel at Joselito Alcantara. 09.......T:......Taga saan naman itong sina Joel at Joselito Alcantara? S:......Si Joselito po ay taga Cavite City hindi ko po alam doon. Si Joel na hindi ko naman alam din ang apelyido ay taga-Pangasinan alam po ito ng aking tatay. 10.......T:......Saan naman kayo nagtuloy ng dumating kayo sa Olongapo? S:......Ako muna ang nagtuloy sa bahay ni Uncle Fontelera at Auntie Rosing (Referring to Rosita Fontelera) at sumunod na lang sila. 11.......T:......Ano naman ang sadya mo dito kay Atty. Fontelera at kanyang asawa? S:......Nais ko sanang makausap si Atty. Fontelera na turing sana kaming kamaganak dahil naghirap kami sa pangangalaga ng kanilang lote sa Novaliches at kung ibebenta niya ang lupa, sana naman may bigyan kami ng kaunti. Pinalayas pa kami. E.N. 12.......T:......Ano naman Fontelera? Misspped ang nangyari, nakausap mo ba si Atty.

S:......Hindi ko po nakausap. Pumasok po itong si Joel at Joselito na bigla na lang sinaksak si Atty. at si Auntie Rosing. Nasaksak ko ng tatlong beses si Uncle Fontelera (Referring to Atty. Fontelera) at ng sasaksakin naman si Auntie Rosing, inawat si Joel ngunit sinabi ni Joel na testigo pa sa atin ito kayat ipinagpatuloy nito ang pagsaksak. Nakita ko po na nakatakbo pa si Auntie Rosing patungong Pizza at nagsisigaw ng Edwin Novaliches kayat natakot ako at lumabas kaagad ako kasama na sina Joel at Joselito at nagkita kami sa Victory Liner Terminal 13. TANONG: Magkakasama kayong umalis, saan naman kayo sumakay ng nasa Victory Liner Terminal na kayong tatlo? SAGOT:......Dalawa lang kami ni Joselito Alcantara ang nagkita, si Joel po ay hindi ko alam kung saan nagtungo. Parehong Balintawak ang binababaan namin dalawa at doon kami nagkahiwalay. 14.......T:......Anong patalim ang ginamit mo, ni Joel at Joselito? S:......Itong nasa ibabaw ng lamesa po sa ngayon ay si Joselito Alcantara. (Affiant was referring and pointing to a kitchen knife HIGH CARBON STAINLESS with a brown handle whose blade measure about 6 inches more or less). Ako po ay beinte nueve na naagaw kay Atty Fontelera. Naagaw po nito ang Beinte Nueve balisong kay Joselito at ito naman ay naagaw ko kay Atty Fontelera. Beinte Nueve rin ang ginamit ni Joel. 15.......T:......Sino ang unang sinaksak sa magasawa? S:......Unang sinaksak si Atty. Fontelera nina Joel at Joselito at ako ay sumasak din ng tatlong beses kay Atty habang nasa dirty kitchen sa labas ng kainan. Ang sumunod ay si Auntie Rosing naman ang sinaksak ni Joel. 16.......T:......Anong dahilan at pati itong sina Joselito at Joel ay nakisali sa pagsaksak dito sa magasawa? ......S:......Kasi ang balak nilang dalawa ay makakuha ng mga gamit doon sa bahay. 17.......T:......Saan naman nila balak ito, sa Novaliches o dito na sa Olongapo? Missc ......S:......Sa Novaliches pa po. 18.......T:......May nakuha naman sila sa bahay ng magasawa? ......S:......Wala po.

19.......T:......Kailan naman binalak ang pagnanakaw? ......S:......Noon ika-14 ng Nobyembre 1990 mga alas 4:00 ng hapon. 20.......T:......Bakit naman binalak nila ito? ......S:......Dahil alam nila abogado ito at maraming gamit. Naikuwento ko sa kanila. 21.......T:...... Kailan mo pa nakilala itong si Joselito at Joel?

29.......T:......Habang naroroon kayo, may nangyari ba ......S:......Opo. 30.......T:......Ano ito? S:......Nakita ko po na dumating kayo. (affiant was referring to Lt Esteban and Pfc Batinga) may iba pa na may armalite kayat nagtago ako. 31.......T:......Ano ngayon ang nangyari?

......S:......Si Joselito mula ng Elementary at si Joel ay nitong 1990 lang. 22.......T:......Nang makarating ka sa Balintawak, saan ka nagtuloy? ......S:......Dumiretso ako ng NUTRI SNACK sa 58 Gen Luis Bo. Capri Novaliches. 23.......T:......Mga anong oras kang nakarating doon? ......S:......Mga 9:30 ng gabi po. 24.......T:......Bakit ka naman nagtungo doon? ......S:......Kakausapin ko si SUSIE PANGILINAN 20 anyos na aking girlfriend. 25.......T:......Nakausap mo naman?

S:......Nagbantay po ang mga pulis doon at pinagpapasok nila ang ibang bahay at ako naman po ay pinanonood lang sila. Nais ko sanang sumurender ngunit natakot ako na baka barilin ako ng naka-armalite. Ng madaling araw na. Nakita ako at nagkahabulan po ngunit hindi ako nahuli ng mga pulis. Ang mga Barangay na tumulong sa mga pulis ang siyang nakahuli sa akin at ibinigay ako sa Novaliches Police Substation at doon pinaguusapan ng mga pulis ang tungkol sa mga Pulis ng Olongapo City na nagreport rin doon na naghahanap sa akin. 32.......T:......Paano ka dinala ngayon dito sa Olongapo. S:......Kinuha na lang ako ng mga pulis Olongapo sa Novaliches Police Sub Station at dinala dito sa inyong tanggapan. 33.......T:......Lalagdaan at panunumpaan mo ito? ......S:......Opo.

......S:......Opo. 26.......T:......Anong oras naman ang trabaho nitong si Susie Pangilinan? ......S:......Alas 6:00 ng gabi hanggang alas 6:00 ng umaga po. 27.......T:......Anong nangyari ngayon? S:......Nanghiram ako ng P 200.00 at ito po ay nag-checkout ng alas 10:00 ng gabi, sa trabaho at sumama sa akin. Spped 28.......T:......Saan kayo nagtuloy ni Susie? ......S:......Sa kanilang bahay po. 34.......T:......Ang suot mong damit at sapatos ng saksakin ang magasawang Fontelera? S......Itong suot kong pantalon ngayon (Affiant was referring and pointing to his striped pants a blue and black stripe pants believe to be with blood stain) 35. TANONG: (Karugtong) Jospped SAGOT:......Puting ordinaryong T-shirt po. Naiwan ko po ito sa Novaliches) at ang sapatos po ay iyan. (Affiant was pointing to low cut white rubber shoes ROBERTSON). 36.......T:......May nais ka pa bang sabihin sa amin? ......S:......Laging galit kasi si Uncle Fontelera.

37.......T:......Itong Auntie Rosing Fontelera mo may galit ka rin ba sa kanya? ......S:......Wala naman po. 38.......T:......Lalagdaan mo ito? ......S:......Opo. [Sgd.] EDWIN NAAG -Nagsalaysay [Sgd.] ASSISTED BY: ATTY NORBERTO DE LA CRUZ SUBSCRIBED AND SWORN to before me this 17th day of Nov 90 at Olongapo City. I hereby certify that I personally examined the affiant and I am satisfied that he voluntary executed and understood the foregoing statement. [Sgd.] ASST CITY PROSECUTOR The last witness for the prosecution was the victims son, Rodrigo Fontelera, Jr. He testified that he used to meet accused-appellant whenever he went to Novaliches to spend vacations with his cousin Salvador Jordan. On the other hand, accused-appellant used to go three to four times a year to the Fontelera house in Olongapo City to do odd jobs. Fontelera, Jr. said that accused-appellant once told him that he (accused-appellant) felt bad because the senior Fontelera was ejecting accused-appellants family from the lot they were occupying in Novaliches. Sppedjo
[14]

police station and told to run which he, however, refused to do knowing that he would be shot on the pretext that he was escaping; that Lt. Batinga asked him to sign a piece of paper (which turned out to be a confession) in exchange for his release; that he only signed one page out of the three pages; and that Atty. De la Cruz did not sign the document in his presence. Miso On cross-examination, accused-appellant testified[18] that he had known Joselito Alcantara for about five years because they were neighbors in Novaliches and that Joel, whose surname he did not know, was actually Joselitos friend; that they had been working at the Fontelera house for two days already prior to the incident; that Atty. Fontelera shouted "bad words" at him and his companions because he was drunk; that he signed the document purporting to be his confession inside the detention cell and never affirmed his signature thereon before the prosecutor. Jose Naag, accused-appellants uncle, also testified.[19] He said that on November 15, 1990, he accompanied accused-appellant to the barangay authorities. Two days before, on November 13, 1990, at around 7 a.m., he saw accused-appellant at the bus terminal and was told by him that he (accusedappellant) was going to Olongapo City. On rebuttal, Rodrigo Fontelera, Jr. testified[20] that, although for a time accused-appellant stayed on his parents lot in Novaliches, the actual caretaker of the lot was his aunt Mely Roque who is his mothers sister, and that accused-appellant was a relative of the husband of Mely Roque. He denied that accusedappellant did some repairs on the Fontelera house in November 1990. On November 15, 1995, the trial court rendered its decision. It dismissed accused-appellants claim that he had no hand in the killing of the Fonteleras. It held that he bore them a grudge because the Fonteleras drove accused-appellant from the Fontelera lot in Novaliches. The court noted that accused-appellants name was mentioned several times by Rosita Fontelera as she was dying and that accused-appellant fled. The court considered the killings of the couple qualified by evident premeditation and aggravated by abuse of superior strength. However, it did not appreciate the mitigating circumstance of voluntary surrender because accused-appellant did not surrender immediately to the police who went looking for him in his house in Novaliches. The dispositive portion of its decision[21] reads: WHEREFORE, in view of the foregoing considerations, the Court finds the guilt of the accused has been proved beyond reasonable doubt and hereby sentences accused Edwin Naag y Roque guilty of the crime of Double Murder with the aggravating circumstance of abuse of superior strength and is hereby sentenced to suffer two (2) terms of reclusion perpetua; to indemnify the family of the victims in the sum of THIRTY-EIGHT THOUSAND PESOS (P38,000.00) funeral expenses, ONE HUNDRED THOUSAND PESOS (P100,000.00) moral damages and to pay the costs. Hence, this appeal. Accused-appellant contends:[22] Nexold I.......WITH THE TOTALITY OF FACTS AND CIRCUMSTANCES PROFFERED IN THE COURSE OF TRIAL ON THE MERITS, THE TRIAL COURT LIKEWISE ERRED IN "PRESUMING" CONSPIRACY. II.......THE TRIAL COURT ERRED IN ITS MISPLACED RELIANCE ON CIRCUMSTANTIAL EVIDENCE, INTERTWINED WITH OTHER DOCTRINES OF LAW ON EVIDENCE IN SECURING A CONVICTION. III. THE TRIAL COURT MADE A WRONG AND SWEEPING VERDICT THAT "FLIGHT" IS PER SE ALWAYS TRANSLATED AS ONE OF GUILT.

Fontelera, Jr. testified that his father earned from P100,000.00 to P150,000.00 a year from his law practice. He also said that he suffered shock and anxiety because of the circumstances under which his parents died. He submitted receipts (Exhs. L to L-7;[15] M to M-1[16]) as proof of the expenses for his parents funeral services. Accused-appellant testified in his behalf.[17] He knew the victims because accused-appellants father was the adopted son of Rosita Fonteleras parents. They all hailed from Bicol. Moreover, his father was caretaker of the Fontelera lot in Novaliches. He said that at around four 4 oclock in the afternoon of November 15, 1990, he went to Olongapo City with Joselito Alcantara and a certain Joel to do some repairs on the Fontelera house; that while outside the house talking to Rosita Fontelera, he heard a commotion inside; that when he went inside, he saw Joel and Joselito stabbing Atty. Fontelera, Sr.; that he managed to pacify Joel and take him outside the house; that when he returned inside the house, however, he saw Joselito attacking Atty. Fontelera, Sr.; that when he went outside to look for Rosita Fontelera so that they could take Atty. Fontelera, Sr. to the hospital, he found Rosita Fontelera herself being stabbed; that he saw her run to the house while shouting "Edwin, Edwin, Novaliches"; that due to confusion, accused-appellant immediately left and took a bus home to Novaliches, arriving there between 9 and 10 p.m.; that when he saw many policemen arrive at their house, he became afraid and went to his girlfriends house and from there, called up his father; that upon the advice of his father, he surrendered to their barangay captain who turned him over to the custody of the police in Novaliches; that he was fetched from Novaliches by the Olongapo police on November 16, 1990 at around 9 a.m. and brought to their station in Olongapo City; that he was subjected to torture and electric shock and doused several times with water taken from the urinal; that at one point he was even taken outside the

IV.THE TRIAL COURTS FAVORABLE PRONOUNCEMENT ON DYING DECLARATION, ABSENT ITS PRE-REQUISITE ELEMENTS IS ERRONEOUS. V.WITH THE DEARTH AND PAUCITY OF FACTS AND CIRCUMSTANCES INDUBITABLE AND ESTABLISHED IN THE COURSE OF TRIAL, THE COURT A QUO ERRED IN CONCLUDING THAT THE MIRANDA SAFEGUARDS ARE OBSERVED. I. The prosecutions case is anchored on accused -appellants extrajudicial confession (Exh. O) and on Rosita Fonteleras dying declarations. A. Anent the extrajudicial confession, accused-appellant claims that there was really no investigation made in the presence of counsel because after he had been interrogated by the police, he was simply made to sign the confession. Accused-appellant makes capital of the testimony of Atty. Norberto De la Cruz that he had been asked to sign a prepared confession of accused-appellant. To be sure, what Atty. De la Cruz said was that he refused the request and demanded another investigation to be conducted in his presence and that the confession which he signed, which is marked Exhibit O, was the result of accused-appellants interrogation during which he was present. Manikx However, we are inclined to believe accused-appellants claim that he was interrogated without the assistance of counsel. In the first place, the opening statement of the confession (Exh. O) says that the confession was taken in the presence of P/Lt. Esteban, but not in the presence of Atty. De la Cruz as well. Atty. De la Cruzs explanation, that when he noticed the omission and asked that his presence be mentioned he was assured that it was not necessary because anyway his name appeared at the bottom of the confession, is too pat to be believed. The opening statement is intended to indicate the circumstances under which the confession was taken, including the persons present, and, therefore, there was no reason why the name of Atty. De la Cruz was omitted. The reason seems to be that Atty. De la Cruz was not really present at the investigation allegedly conducted on November 16, 1990. In the second place, an examination of Exhibit O shows that Atty. De la Cruzs name was simply added at the end of the confession after it had been prepared. The confession appears to have been prepared on a typewriter different from that used to type the name of the accused-appellant, Atty. De la Cruz, and the acknowledgment clause and the name of the Assistant City Prosecutor before whom the confession was sworn to. The text of the confession is darker suggesting that the ribbon used was new, whereas the names of accused-appellant, Atty. Norberto de la Cruz, and the Assistant City Prosecutor, as well as the acknowledgment clause are lighter, suggesting that the ribbon used was almost faded. It is not quite probable that the typist simply changed the ribbon of his machine, otherwise the first portion should be lighter and the latter part darker. For these reasons, we hold that accused-appellant was interrogated without the assistance of counsel, in violation of Art. III, 12(1). Nor does it appear that accused-appellant effectively waived effectuation of the rights in Art. III, 12(1) of the Constitution, which provides: Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

The following appears in accused-appellants confession: Maniks PAALALA: Bago tayo magsimula, nais kong ipagbigay alam sa iyo na sa Ilalim ng ating Saligang Batas, ikaw Edwin ay may mga KARAPATAN ng mga sumusunod: (1)......KARAPATAN mong manahimik, magbigay o huwag magbigay ng ano man salaysay. Ihinto ng ano mang oras ang imbistigasyon ito; (2)......KARAPATAN mong kumuha ng abogado na tutulong sa iyo at kung hindi mo kaya, magbibigay kami at ito ay walang bayad; (3)......Ang sasabihin mo ay maaaring gamitin ng PANIG o LABAN sa iyo sa alin mang hukuman dito sa Pilipinas; TANONG : Ngayon masabi namin sa iyo ang LAYUNIN pati na ang iyong mga KARAPATAN, ito ba ay iyong nauunawan o naiintindihan? SAGOT: Opo. TANONG: Nais mo pa rin bang ipagpatuloy natin ito? SAGOT: Opo. Authoritative interpretations of the Miranda rule[23] as embodied in Art. III, 12(1) require, however, that the suspect in custodial interrogations be warned: (1) that he has a right to remain silent; (2) that he has a right to the assistance of counsel; (3) that if he cannot afford counsel one will be provided to him; and (4) that anything he will say can and will be used against him.[24] While accused-appellant was told what his rights were and answered in the affirmative when asked whether he understood what he had been told, the crucial question is whether he effectively waived the effectuation of these rights. We find that he did not and, therefore, his confession (Exh. O) is inadmissible in evidence. Accused-appellant was not asked whether he was willing to testify even without the assistance of counsel. If he was willing to testify only with the assistance of counsel, he should have been asked if he had one. If he said he wanted to have counsel but could not afford one, he should have been asked if he wanted one to be appointed for him.[25] As a result of the investigators failure to ask these questions before taking down accused-appellants statement, there was no effective waiver of his right s to remain silent and to counsel. Manikanx B. The trial court likewise relied on Rosita Fonteleras dying declarations for its conclusion that accused-appellant was one of those who killed the Fonteleras. As already stated, as Rosita Fontelera lay dying, she was heard repeatedly saying "Si Edwin, si Edwin." Two witnesses, Eufracio Banal and Pfc. Leo Batinga, testified to this fact. Accused-appellant also admitted that, as he was coming out of the Fontelera house to tell Rosita Fontelera that her husband had been stabbed, the latter shouted, "Edwin, Novaliches, Edwin, Novaliches," as she was running from him. It is contended, however, that the declaration is incomplete and cannot be taken to mean that Rosita Fontelera was pointing to accusedappellant as an assailant. Accused-appellant cites the case of People v. De Joya,[26] in which it was held: . . . 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 designated to designate the subject 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?" Alvins 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. . . . The doctrine of completeness has also been expressed in the following terms in Prof. Wigmores classic work: The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely a part 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." (Italics supplied) Oldmiso 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. This case is, however, different from People v. De Joya. In this case, the deceased was saying "Si Edwin, si Edwin" not only when found inside the pizza parlor by Banal and Seballa but also as she was running away wounded. The circumstances in which she was saying "Si Edwin, si Edwin" make it clear that she was referring to accused-appellant as her assailant or at least one of her assailants. Indeed, accused-appellant himself testified that he heard Rosita Fontelera shouting, "Edwin, Edwin, Novaliches" as she was running away from him. Contrary to accused-appellants claim that he was approaching Rosita Fontelera to inform her that her husband, Atty. Fontelera, had been stabbed, it is clear that Rosita Fontelera was fleeing from him and running inside the pizza parlor beside her house to seek refuge from her attacker. She was running away from accused-appellant because the latter was after her. Rule 130, 42 provides that "[s]tatements 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 considered as part of res gestae."[27] It was in the context of a startling event that Rosita Fontelera was shouting "Edwin, Edwin, Novaliches." In that context, her words can only mean that accused-appellant was her attacker. After all, she did not just name accused-appellant when she staggered into the pizza parlor seriously wounded but also as she was fleeing from her assailant. Rosita Fontelera became

hysterical and shouted accused-appellants name and place of residence. That is why, in panic, accusedappellant fled. Indeed, there is circumstantial evidence strongly pointing to accused-appellants guilt, to wit: (1) accused-appellants admitted he was present at the time of the killing of the Fonteleras; (2) he later fled from the place and went into hiding; and (3) accused-appellant had a motive for killing the Fonteleras. Ncmx Accused-appellant admitted being at the Fontelera residence in Olongapo City at the time of the killing. He was from Novaliches. Why he went to Olongapo City, to the residence of the Fonteleras, has not been satisfactorily explained. His claim that he went to the Fontelera residence to do some repair jobs was belied by Rodrigo Fontelera, Jr. who denied that there were repairs done on their house in November 1990.[28] Now, Joselito Alcantara and Joey were total strangers to the Fonteleras. It was accused-appellant who was known to the Fonteleras. It is hard to believe accused-appellants claim that it was his companions alone who killed the couple and that he had no part in the commission of the crime. Accused-appellant himself testified[29] that while he was outside the house talking with Rosita Fontelera, he heard a commotion from inside. Upon entering the house, he allegedly saw "My two companions . . . stabbing Atty. Fontelera, [Sr.];" that after stopping Joel and bringing him outside the house, accusedappellant went back inside the house for his other companion, Joselito Alcantara, but by then Atty. Fontelera, Sr. had already suffered many stab wounds; that when he went outside to call Rosita Fontelera, "[he] saw that Mrs. Fontelera was likewise stabbed," presumably by Joel whom accusedappellant had earlier brought outside the house; that when accused-appellant approached Rosita Fontelera, the latter, "suddenly stood up and ran to the house"; that Rosita then started shouting his name, as a consequence of which he became so "confused . . . that I . . . went straight to the terminal." Now, why should Rosita Fontelera run towards the house shouting "Edwin, Edwin, Novaliches" if she was not running away from accused-appellant because the latter was attacking her? And why should accused-appellant panic and flee from the scene of the killing and go into hiding in Novaliches if he was not guilty? Flight is evidence of guilt.[30] For as the proverb says, "the wicked flee when no man pursueth; but the righteous are as bold as a lion."[31] Accused-appellants excuse that he went home to "tell my parents about what happened"[32] is puerile and is not worthy of credence. The explanation in his brief[33] that it was because he feared for his safety and that he wanted "to surrender in a safer place like his hometown" is an admission that he is guilty of the killing of the couple. He feared for his safety because of possible revenge by relatives and friends of the victims. Finally, accused-appellant had the motive to kill the couple. He went to Olongapo City and brought along his two companions because he resented his familys eviction from the land of the Fonteleras in Novaliches. In his own words, Atty. Fontelera, Sr. "fired" his father as caretaker of the land. [34] He thus had a motive to think ill of them. Ncmmis This concatenation of details constitute circumstantial evidence which, under Rule 133, 4 of the Revised Rules on Evidence, is sufficient to convict accused-appellant if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. II. Judging from the number and severity of the stab wounds inflicted on the victims, the crime committed was murder qualified by treachery. Apparently, accused-appellant and his companions made sure they succeeded in killing their victims without risk to themselves. [35] Treachery absorbs the circumstance of

abuse of superior strength,[36] so there was no need for the trial court to take it into account as an aggravating circumstance. On the other hand, there is no basis for appreciating evident premeditation as there is no evidence of the planning and preparation to kill or when the plan was conceived.[37] Since the killing of the couple was committed inside their house, the aggravating circumstance of dwelling should be appreciated. Considering the presence of one aggravating circumstance and the absence of any mitigating circumstance, the penalty for the crimes committed in this case would have been death. However, as the crimes were committed after the effectivity of the 1987 Constitution and prior to the reimposition of the death penalty by R.A. No. 7659, the trial court properly imposed on accused-appellant two terms of reclusion perpetua for the killing of both Rodrigo Fontelera, Sr. and Rosita Fontelera. III. With regard to the question of damages, Rodrigo Fontelera, Jr. presented receipts showing that the victims family spent P18,000.00 for "funeral coach chandeliers, (First Class) embalming" (Exh. L);[38] P4,000.00 for the vault (Exh. L-3);[39] P1,100.00 for two tombstones (Exhs. L-7 and L5);[40] P1,000.00 for "exc. fee" (Exhs. L-2 and L-6);[41] and P950.00 for "Prep." fees for Rosita Fontelera (Exh. L-4);[42] or the total amount of P25,050.00. Accordingly, the amount of P38,000.00 awarded as funeral expenses to the heirs of Rodrigo Fontelera, Sr. and Rosita Fontelera should be reduced to P25,050.00. The award of P100,000.00 as indemnity for the death of Rodrigo Fontelera, Sr. and Rosita Fontelera is in accord with our current rulings[43] and should be affirmed. The award of P100,000.00 as moral damages for each death is likewise appropriate.[44] WHEREFORE, the decision of the Regional Trial Court, Branch 72, Olongapo City, is AFFIRMED with the MODIFICATION as above indicated G.R. No. 124135 September 15, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.DANNY QUELIZA, accused-appellant. MELO, J.: Accused-appellant Danny Queliza seeks reversal of the judgment rendered by Branch 54 of the Regional Trial Court of the First Judicial Region, stationed in Alaminos, Pangasinan, which found him guilty of the crime of murder under Article 248 of the Revised Penal Code, and consequently sentenced him as follows: WHEREFORE, in accordance with the evidence adduced and law applicable hereof, and finding that moral certainty has been reached as to find the accused guilty beyond reasonable doubt of the crime of murder under Article 248 of the Revised Penal Code, if is now the painful duty of this court to impose on the accused the single indivisible sentence of Death but as since this sentence is proscribed at the time of the commission of the crime by the 1987 Constitution, the medium degree of Reclusion Perpetua is imposed and to pay to the heirs of the victim civil damages in the following amounts: A. B. C. P9,500.00 P100,000.00 P100,000.00 for for for compensatory loss of moral damages earning damages

D. P50,000.00 in accordance with law (pp. 38-39, Rollo.)

for

indemnification

awarded

to

heirs

Accused-appellant Danny Queliza was charged under an Information docketed as Criminal Case No. 2596-A, for the crime of murder, reading as follows: That on or about October 30, 1992, in the evening in Barangay Aporao, Municipality of Bani, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously shoot VICTORIANO CABANGON with a short firearm, inflicting him injuries to wit: Point of entry: frontal area skull, right side, I cm., rough edges, (positive powder [sic] burns, with minimal amount of brain tissue at the surface. right eye is bulging. Linear fracture 6 cm. Length traversing the frontal area of the skull. Brain tissue is lacerated with moderate amount of clotted blood at the cranial area. which cause the instantaneous death of Victoriano Cabangon as a consequence, to the damage and prejudice of the heirs of the victim. CONTRARY to Art. 248 of the Revised Penal Code. (p. 8, Rollo) Upon arraignment, accused-appellant pleaded not guilty and following trial, the judgment, now under review, was rendered. Hence, the instant appeal premised on the following assigned errors: 1 THE LOWER COURT GRIEVOUSLY ERRED IN INTERPRETING THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION TO BE AFFIRMATIVE IN NATURE AND THEREFORE MORE CREDIBLE THAN THOSE OF THE WITNESSES FOR THE DEFENSE WHICH THE LOWER COURT HELD TO BE NEGATIVE. 2 THE LOWER COURT GRAVELY ERRED IN OVERLOOKING AND DISREGARDING FACTS AND CIRCUMSTANCE OF GREAT AND SIGNIFICANT WEIGHT AND IMPORTANCE WHICH, IF PROPERLY CONSIDERED, WOULD HAVE RESULTED TO THE ACQUITTAL OF THE ACCUSED-APPELLANT

3 THE LOWER COURT OBVIOUSLY ERRED IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE ACCUSEDAPPELLANT BEYOND REASONABLE DOUBT. 4 THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIME ON GROUND OF REASONABLE DOUBT. (Rollo, p. 57) Based on the record, the undisputed facts of the case are the following: At around 8 o'clock on the night of October 30, 1992, as Victoriano Aguilar Cabangon, 26 years old, Teresita Cabangon, 22 years old, husband and wife, together with their 5-year-old son, were resting in their bamboo hut at Barangay Apurao, Bani, Pangasinan, Victoriano, who was already asleep, was suddenly killed by a gunshot directed at the frontal area of his skull. The prosecution's version is based on the testimony of its witnesses, Victoriano's widow, Teresita, who positively identified accused-appellant Danny Queliza, as the culprit; Loreta Aguilar Cabangon, mother of the deceased; Restituto Rivera, the embalmer; and Dr. Vicente C. Tongson, the Rural Health Doctor. The Office of the Solicitor General summarized the events as follows: Appellant Danny Queliza, victim Victoriano Cabangon and his mother Loreta were neighbors at Barangay Apurao, Bani, Pangasinan. Five days before the fateful night of October 30, 1992, appellant had a quarrel with victim's cousin, Ruben Ardesani. In that incident, the victim had made manifestations siding with his cousin whom he felt was aggrieved. Appellant resented this and threatened the victim saying that the latter's life was only worth P12,000.00 (Records, p. 55). At about 8:00 o'clock in the evening of October 30, 1992, his wife Teresita and their 5-year old son were peacefully lying down for the night in their house (bamboo hut) illuminated by an electric bulb. Father and son had already fallen asleep while Teresita was still awake listening to the program "Mr. Lonely" (TSN, Sept. 9, 1993, pp. 4-7). All of a sudden, appellant pushed the door open and forthwith fired a gun at the victim's head. Appellant glanced at Teresita and fled. The victim died on the spot. Horrified by the scene, Teresita cried for help (TSN, Sept. 9, 1993, pp. 4-12). Moments before the gruesome murder, the victim's mother, Loreta Cabangon, was in her yard (about five meters away from the victim's house) to answer a call of nature. She saw appellant and two others arrive at the victim's porch then illuminated by an electric lamp. Appellant went up alone at the victim's balcony. Not long after, she heard a gun report coming from the victim's house and thereafter saw appellant jump out of the victim's house holding a gun and sped away (TSN, Sept. 15, 1993, pp. 5-18; Sept. 13, 1993, p. 15). Loreta shouted for help and dashed to the victim's house where she met Teresita at the porch crying and shouting, "Nay awan ni Victoriano pinatay ni Danny Queliza"

("Mother, Victoriano is already gone, he was killed by Danny Queliza") [TSN, Sept. 15, 1993, pp. 11-12; Sept. 13, 1993, p. 15]. On the same night, the incident reached the barangay and police authorities. Pat. Cecilio Dollaga was one of the policemen who responded and investigated the case. When he interviewed Teresita, the latter named appellant as her husband's assailant (Id., pp. 14-15; TSN, Sept. 9, 1993, p. 15; TSN, May 19, 1994, pp. 3-4). The post-mortem examination on the cadaver of the victim shows that he died of "Intracranial Hemorrhage, secondary to Brain Tissue Injury secondary to Gunshot wound (Exh. "A", Records, p. 6). After the victim's burial, Teresita gave her sworn statement at the Police Station, Bani, Pangasinan (Exh. "B" and "B-1"; TSN, Sept. 9, 1993, p. 16). (Rollo, p. 83.) Accused-appellant, on the other hand, presented the defense of alibi. Corroborated by witnesses William Raboy and Cornelia Romero, accused-appellant's defense is to the effect that at the time of the incident he was in Arnedo, Bolinao to go swimming at the sea with his cousins; and that he returned to his hometown only on December 21, 1992 when he voluntarily surrender to the police authorities of Bani, Pangasinan to deny any knowledge of the incident. The defense also clings to the testimony of Pat. Cecilio Dollaga to the effect that when he interrogated Teresita Cabangon, she declared that she did no know the killer of her husband (tsn, pp. 17, 19, 21, Oct. 28, 1993). Lastly, the defense notes that the trial in this case was conducted before Judge Segundo Paz who passed away before he could decide the case, and that the decision was penned by Judge Jules A. Mejia, who did not have the opportunity of observing the demeanor of the witnesses for both the prosecution and the defense. In giving credence to the prosecution's evidence, the trial court noted the opposing contentions of Teresita Cabangon, as corroborated by Loreta Cabangon, and that of Patrolman Dollaga. Teresita Cabangon testified that when she was asked by Dollaga who killed her husband, she identified the accused-appellant. This was corroborated by Loreta Cabangon, who testified that she heard her daughter-in-law reveal to Dollaga the identity of the assailant. On the other hand, Dollaga said that for three times during his interrogation on the very night of the incident, he asked the widow who killed her husband and she disclaimed knowledge thereof. Faced with these contradictory contentions, the trial court preferred the affirmative over the negative testimony. Nevertheless, the trial court held that even assuming that Teresita Cabangon indeed did not, on the initial investigation, identify the author of the crime, such failure, "lacks spontaneity because of the condition of the declarant, surrounding circumstances such as fright, tension, stress, instability under an atmosphere of serious or continuing fear specially since it was nighttime, just a few hours after her husband was murdered" and that the "diversion of her thoughts may be the result of attention to other matters, more importantly her own safety which is in fact the first law of nature. . ." Further, the trial court did not give credence to the insistence of accused-appellant that he was not the assailant because he was not at the place of the crime at the time of its occurrence.

The court said that "alibi cannot stand to exculpate hint as he was positively identified by Teresita as the very person who shot her sleeping husband, coupled by the testimony of the mother of the deceased that after the shot was heard, she saw the accused jump from the porch carrying a hand gun in his right hand." The trial court ruled out the reliability of alibi as a defense since "it was not physically impossible for the accused to proceed to Arnedo, Bolinao from Apurao, Bani on the night of October 30, 1992", a distance which would not take more than two hours to traverse. The trial court also did not see any personal reason on the part of the widow and the mother of the deceased nor any grudge that may push them to falsely testify against accused-appellant, unlike the witnesses for the defense, who were perceived to be biased in favor of accusedappellant. Lastly, the trial court appreciated against accused-appellant the qualifying/aggravating circumstances of treachery, evident premeditation, and nocturnity, it being undisputed that the deceased was asleep with his family when he was shot, that the attack was so sudden and that the victim could not have been given even the slightest opportunity to prepare for or repel or avoid the attack, even if he were awake. Evident premeditation is said to have been present since minutes before the gunshot was heard, three persons, one of whom was identified as accused-appellant, were seen only six meters away from the house of the victim. The trial court concluded that the mode of attack was purposely sought to facilitate the commission of the crime and to facilitate accused-appellant's escape. We sustain the conviction of accused- appellant. Under his assignment of errors, which he discussed jointly, accused-appellant questions the finding of the trial court that the testimony of the witnesses for the prosecution is affirmative in nature and that of the witnesses for the defense is negative. He likewise assails the trial court for overlooking and disregarding what he says are certain facts and circumstances which, if properly considered, would have resulted in his acquittal. Lastly, he objects to the trial court's finding that the prosecution was able to prove his guilt beyond reasonable doubt. At the outset, it is significant to note that the circumstance that Judge Jules Mejia, the one who penned the assailed decision, is not the one who heard the witnesses, a fact which Judge Mejia honestly admitted in his decision, will not automatically warrant a reversal of the decision. In the recent case of People v. Rabutin (G.R. Nos. 118131-32, May 5, 1997) we held: This Court had ruled that while the trial judge who presided at the trial of the case would be in a better position to ascertain the truth or falsity of the testimony of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision. This is the main reason why all trial courts are mandatorily required to be courts of record. Whoever is tasked to render judgment in every case can rely on the transcribed stenographic notes taken during the trial as basis for his decision. (People v. Peralta, 237 SCRA 220 [1994]). (pp. 10-11) We agree with the finding of the court a quo that based on jurisprudence, affirmative testimony has greater value than a negative one (People v. Salazar, 248 SCRA 157 [1995]) since the defense of denial crumbles in the face of the complainant's positive identification of the culprit (People v. Balsacao, 241 SCRA 309 [1995]). However, we rule that the distinction between

affirmative and negative testimony is not applicable to the opposing contentions of Teresita Cabangon and Patrolman Dollaga. In Revilla v. Court of Appeals (217 SCRA 583 [1993]), negative and positive testimony were distinguished as follows: . . . Evidence is negative when the witness states that he did not see or know the occurrence of a fact, and positive when the witness affirms that a fact did not occur (2 Moore on Facts, p. 1338) (p. 592) Based on the above distinction, it is plain that the declarations of Teresita Cabangon and Patrolman Dollaga are both positive in nature. Teresita said that she identified her killer when she was interrogated by Dollaga. Patrolman Dollaga, on the other hand, testified to something known to himself, namely, that Teresita did not divulge the identity of the assailant. However, taken in its totality, in contrast to the defense of denial made by accused-appellant, which is indeed negative testimony, we give greater weight to Teresita's positive identification of the culprit and her testimony on the circumstances of the murder. This was corroborated by Loreta Cabangon that (a) she saw accused-appellant enter the balcony of the house of the deceased moments before the fatal gunshot was heard, and (b) immediately thereafter she saw accused-appellant with a gun in his right hand leaving the victim's house. Even assuming that Teresita did delay in revealing the identity of her husband's assailant, this should not destroy the essence of her testimony, mainly, the positive identification of accusedappellant as the culprit. Defense witnesses Patrolman Dollaga and Councilman Moises corroborated each other's testimony that Teresita Cabangon delayed in revealing the identity of her dead husband's assailant. The record shows that it was only on November 16, 1992, or a delay of only 16 days from the commission of the crime on October 30, 1992, when Teresita Cabangon reported the crime to the police authorities and named accused-appellant as her husband's assailant. She did this when she executed her affidavit which was presented during the preliminary investigation of the case at bench. However, we believe that the slight delay is not a far from ordinary human experience. We have to understand the human psyche given the morbid and horrific situation Teresita Cabangon was in. She witnessed her husband's death. For a moment, her husband was sleeping peacefully; the next moment, he was dead. So violent was his death that the poor wife saw blood come out from his head and she saw his right eye bulge. Such dreadful circumstances would undoubtedly leave the helpless wife in fright and in shock. Fear of the assailant's return to kill her and her son was also a natural reaction. Hence, it was normal and not unreasonable for Teresita Cabangon to have taken her time to muster enough strength to identify her husband's assailant, whom she saw with her own eyes that fatal night. There is no rule that the suspect in a crime be named by a witness hurriedly. In fact, in People v. Corpus (240 SCRA 203 [1995]), we had an opportunity to rule that the unhurried and deliberate manner in which a witness identifies the accused even strengthened her credibility, to wit:

. . . It is true that Calapini did not point to accused-appellant as one of her assailants immediately and straight-away upon seeing him at the hospital. The records show that Calapini took her time to scrutinize accused-appellant's features. She studiously looked him over before identifying him as one of the assailants. Surely, she cannot be faulted for deliberating and making sure that the person presented before her was indeed one of the culprits. When she became certain, however, she decisively and without the slightest hesitation, identified the accused appellant. . . (p. 208) We have consistently ruled that persons do not necessarily react uniformly to a given situation, for what is natural to one may be strange to another (People v. Cabrera, 241 SCRA 28 [1995]; People v. Paguntalan, 242 SCRA 753 [1995]; People v. Halili, 245 SCRA 312 [1995]; People v. Espinoza, 247 SCRA 66 [1995]). What is important is the fact that Teresita Cabangon, notwithstanding the anxiety and fear that she had to go through after witnessing the brutal killing of her husband, gained enough courage to name her husband's assailant. This she did despite fear of retaliation from accused-appellant, who actually resides in the same town where Teresita resides. Teresita's testimony is further strengthened by Loreta Cabangon's narration of events, particularly the fact of hearing Teresita Cabangon utter the statement "Nay awan ni Victoriano pinatay ni Danny Queliza" (Mother, Victoriano is already gone, he was killed by Danny Queliza"). This emotional lament is significantly part of the res gestae. In a long line of jurisprudence (People v. Esquilona, 248 SCRA 139 [1995]; People v. Tolentino, 218 SCRA 337 [1993]; Pantranco North Express, Inc. v. Court of Appeals, 224 SCRA 477 [1993]; Anciro v. People, 228 SCRA 629 [1993]), the requisites of res gestae as an exception to the hearsay rule were laid down: (1) that the principal act or the res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances. Any delay on Teresita Cabangon's part to identify her husband's assailant is emphatically overcome by the aforestated statement which was correctly considered by the trial court as part of the res gestae. Accused-appellant, in a desperate attempt to discredit the mother daughter tandem, banks on inconsistencies in their testimony, which upon perusal are actually minor in character. Whether Teresita saw her husband's assailant while she was lying down or while she was sitting is of no consequence considering that the identified who the assailant was. Her absence at the crime scene during the investigation made by Patrolman Dollaga is of no moment, considering that she was nonetheless later subjected to investigation. Her failure on the stand to remember the size of the weapon which she had earlier described as six to twelve inches long during the preliminary investigation, cannot be taken against her. Whether Loreta Cabangon looked out of the window or whether she looked out of the door when she heard the fatal gunshot is not significant. These inconsistencies are minor details which can not prompt us to discredit these two witnesses. It has always been our ruling that inconsistencies in the testimony of a witness with respect to minor details or inconsequential matters may be disregarded without impairing the credibility of the witness (People v. Magalong, 244 SCRA 117 [1995]; People v. Compil, 244 SCRA 135

[1995]). In fact, such minor inconsistencies even tend to strengthen then rather than weaken a witness' credibility (People v. Lorenzo, 240 SCRA 634 [1995]) for these inconsistencies negate and erase any suspicion of rehearsed testimony (People v. Padilla, 242 SCRA 629 [1995]). Besides, in the present case, there is clearly consistency relative to the principal occurrence and positive identification of the assailant (People v. Panganiban, 241 SCRA 91 [1995]). Accused-appellant's defense is underpinned by his assertion that he was in another municipality at the night of the murder. His testimony on this point was corroborated by Cornelia Romero who testified that accused-appellant, together with two others, had dinner at her house and stayed overnight. Time and again, we have ruled that alibi is a weak defense and even if it is supported by the testimony of friends of the accused, deserves the barest consideration (People v. Gamiao, 240 SCRA 284 [1995]). It will only be given weight if it would preclude any doubt that the accused could not have been physically presented at the place of the crime or its vicinity at the time of the commission (People v. Daquipil, 240 SCRA 314 [1995]; People v. De Roxas, 241 SCRA 369 [1995]; People v. Morin, 241 SCRA 709 [1995]; People v. Rivera, 242 SCRA 26 [1995]; People v. De la Iglesia, 241 SCRA 718 [1995]; People v. Umali, 241 SCRA 17 [1995]; People v. Dayson, 242 SCRA 124 [1995]; People v. Espinosa, 243 SCRA 7 [1995]; People v. Parica, 243 SCRA 557 [1995]; People v. Escoto, 244 SCRA 87 [1995]). We agree with the trial court's finding that it was not physically impossible for accusedappellant to have been at the crime scene on October 31, 1992 at 8 p.m. From the crossexamination of the accused-appellant, the following facts were established: 1. Barangay Apurao, Bani, Pangasinan (the crime scene), and Arnedo, Bolinao (where accused-appellant allegedly was) are separated by three barangays, namely, Luac, Tugue, and San Jose. 2. From Apurao to Luac, the distance is one kilometer. From Luac to Tugue is about two kilometers. From Tugue to San Jose is about two kilometers. 3. From San Jose, Bani to the town proper in Bolinao, travel time is around 30 minutes. From Bolinao town proper to Arnedo, travel time is 20 minutes or a distance of two kilometers, as testified by accused-appellant, for verily, judicial notice was taken of the fact that one kilometer can be easily travelled within 7 to 8 minutes (People v. Sumbillo, et al., G.R. No. 105292, April 18, 1997). Considering that the above-stated barangays and towns could be traversed by motorized vehicles, we are persuaded with the trial court's finding that accused-appellant could not have consumed more than two hours to travel from Arnedo, Bolinao to Apurao, Bani, considering that it was nighttime and roads were not too busy. As held in People v. Gamiao, supra: The trial court correctly disbelieved appellant's defense of alibi, a handy but shabby excuse which indictees never seem to tire of . . . [I]t is not enough to prove that the accused was somewhere else when the crime was committed, but it must likewise be demonstrated that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Caoile himself admitted in his testimony that the distance between the locus criminis and Tabacan, Dinalupihan, Bataan where he claimed to be, is only about 100 km., which could be negotiated by a

public utility vehicle in not more than 2 hours, even taking into consideration the traffic congestion normally encountered by a commuter. (pp. 261-262) Moreover, accused-appellant's defense of alibi must necessarily fall in the light of the testimony of Teresita Cabangon and Loreta Cabangon positively and unequivocally identifying him as the assailant and placing him at the crime scene immediately after the shooting. The only corroborative evidence presented by the defense to show that accused-appellant was in Arnedo, Bolinao during the time of the incident was the testimony of Cornelia Ramos, which, however, fell apart on cross-examination where it was elicited that Cornelia Ramos was not a disinterested witness. It was shown that the land where her family was staying is owned by the aunt of accused-appellant. The witness herself testified that accused-appellant did not have the habit of sleeping in her house, and that when accused-appellant did allegedly spend the night in her house on October 30, 1992, it was, quite strangely, the first time he did so. In sum, we give great weight to Teresita Cabangon's testimony that it was accused-appellant who fired the fatal gunshot which killed her husband while he was asleep last October 30, 1992, which declaration is corroborated by Loreta Cabangon's testimony that she saw the accused-appellant near the crime scene before and after the murder, carrying a hand gun. These declarations are credible in themselves, they belie the accused-appellant's defense of alibi, and prove beyond reasonable doubt that it was accused-appellant who murdered the deceased. However, we modify the penalty imposed by the trial court from the medium degree of reclusion perpetua to the single indivisible penalty of reclusion perpetua. Based on the evidence, the qualifying aggravating circumstance of treachery already absorbs the aggravating circumstance of nocturnity since nighttime forms part of the peculiar treacherous means and manner adopted to insure the execution of the crime (People vs. Bardon, 165 SCRA 416 [1988]; People v. Abitona, 240 SCRA 335 [1995]; People vs. Saliling, 249 SCRA 185 [1995]). It is clear from the circumstances of the murder that accused-appellant made some preparation to kill the victim by choosing nighttime when the victim had already retired for the day, in order to ensure the execution of the crime and to make it impossible for the victim to defend himself. As regards the aggravating circumstance of evident premeditation, we hold that the presence of the requisites therefor, were not clearly and sufficiently shown. The elements of evident premeditation are: (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) sufficient lapse or interval of time between such determination and execution to allow him to reflect upon the consequence of his act (People vs. Saliling, supra, People vs. Besana, 220 SCRA 93 [1993]). The presence of evident premeditation must not be deduced from mere presumption or sheer speculation (People vs. Barros, 245 SCRA 312 [1995]) and it must be proven as clearly as the crime itself (People vs. Halili, 245 SCRA 340 [1995]). The mere fact that accused-appellant was seen minutes before the gunshot was heard together with two persons six meters away is not sufficient to conclude the attendance of evident premeditation. At any rate, with or without this aggravating circumstance, the penalty would still be reclusion perpetua which is an indivisible penalty (People vs. Saliling, supra.) As to accused-appellant's civil liability, by and large, the trial court was correct in awarding the following, supported as they are by the testimony of Teresita Cabangon:

a) Funeral expenses amounted to P500.00 per day during the seven-day wake of the victim (tsn, Sept. 9, 1993, p. 17). Loreta Cabangon further testified that she spent P7,000.00, consumed 5 gantas of rice, and spent P200.00 per viand of food during the wake and vigil (tsn, Sept. 13, 1993, p. 19). b) As regards the victim's income, it was shown that he was a farmer who harvested 60 cavans of palay a year, which he sold at P5.00 per kilo. He was also a fisherman who used to catch 5 liters of shrimps a day and sold the same at P60.00 or P30.00 per liter depending on the size of the container used. Lastly, he worked at the construction of a dike and earned P100.00 a day therefor (tsn, Sept. 9, 1993, pp. 19-22). Thus, the trial court correctly awarded P9,500.00 as compensatory damages for funeral expenses; P100,000.00 for projected loss of earnings considering that the victim, who was 26 years old, was the lone provider for his family's basic needs; and, of course P50,000.00 as indemnity for the death of the victim, in line with the current jurisprudence. However, the amount of P100,000.00 as moral damages for the physical suffering, mental anguish, fright, serious anxiety, and moral shock of the victim's widow, considering the manner by which the victim was killed, awarded by the trial court seems to be a bit inflated. We believe that P20,000.00 would be more reasonable. WHEREFORE, the decision appealed from is hereby AFFIRMED, with the modifications above-stated. No special pronouncement is made as to costs. [G.R. No. 110872. April 18, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEX GARMA, accused-appellant. DECISION FRANCISCO, J.: At around 8:00 o'clock in the evening of December 2, 1987, while Herminigildo Isidro was gathering hay just a few meters away from their house in Sitio Alinaay, Baguingao, Cabugao, Ilocos Sur, he heard two shots fired in succession.[1] Seconds later, he then heard his uncle Sixto Selma cry: "Remy [referring to Herminigildo] arayatennakman" or Remy, will you come to my rescue."[2] Believing that Sixto has been shot and that the assailants were still in the vicinity, Herminigildo immediately ran toward their house to inform his relatives of what he heard.[3] Maria Isidro, Sixto's sister, also heard the gunshots and Sixto's subsequent call for assistance.[4] She forthwith awakened Gil Morales,[5] her son-in-law, who, with Perlita GazmenSelma, thereafter sought assistance from Councilor Jose Ardesani.[6] The latter, however, refused to extend assistance as he was himself "afraid" of the assailants. [7] Thus, left with no further alternatives, Gil, Perlita, Herminigildo and Maria, mustered all their courage together and proceeded to the place from where they heard Sixto moaning. They found the area deserted with Sixto lying on the ground wounded.[8]Upon seeing them, Sixto promptly complained: "I am hit"; and when asked by Herminigildo about the identity of the assailant, Sixto replied: "They were three (3) but I recognize[d] only Alex Garma." [9] Sixto was rushed to the nearby Pura Clinic, but was transferred to Gabriela Silang General Hospital in Tanog, Vigan, Ilocos Sur where he expired at around 12:00 o'clock in the same evening.[10] The cause of his death: "Cardio respiratory arrest x x x [due] to hypovolemic shock x x x to massive hemorrhage x x x to multiple gunshot wound."[11]

On the basis of the separate sworn statements executed by Herminigildo and Gil, appellant and an unidentified accused, were thereafter charged with Murder in an Information that reads: "That on or about the 2nd day of December, 1987, in the [M]unicipality of Cabugao, [P]rovince of Ilocos Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and helping one another, with treachery and evident premeditation, and with intent to kill, did then and there wilfully (sic), unlawfully and feloniously assault, attack and shoot with the use of illegally possessed firearm one Sixto Selma, thereby inflicting upon the latter mortal wound on his body, which wound necessarily produced the death of said Sixto Selma, few hours later."[12] Appellant pleaded not guilty when arraigned. Trial ensued. On December 4, 1989, the trial court handed down a verdict of conviction sentencing the appellant to suffer ten (10) years and one (1) day ofprision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum. The trial court likewise directed the appellant to indemnify Sixto's heirs in the amount of P30,000.00.[13] On appeal, the Court of Appeals affirmed the findings of the trial court, except for the penalty imposed and the amount of civil indemnity awarded which the Court of Appeals increased to reclusion perpetua and P50,000.00, respectively.[14] The case is now certified to us by the Court of Appeals in accordance with Rule 124, Section 13 of the Rules of Court,[15] in relation to Article VIII, Section 5, paragraph (2), subparagraph (d) of the 1987 Constitution.[16] It is evident that appellant's conviction was predicated principally on the statement uttered by Sixto hours before his death, identifying appellant as one of the assailants. Said statement was testified to by four (4) prosecution witnesses, namely: (1) Herminigildo Aquino; (2) Gil Morales; (3) Maria Isidro; and (4) Perlita Gazmen-Selma, who all claimed to have heard Sixto's revelation when they found him lying on the ground-wounded. The trial court admitted such statement as part of res gestae, while the Court of Appeals considered the same as both part of res gestae and dying declaration. We agree with the Court of Appeals that the statement of Sixto uttered shortly after the assault and hours before his death identifying the appellant as one of the assailants, qualifies both as dying declaration and as part of res gestae. To elaborate, there are four (4) requisites which must concur in order that a dying declaration may be admissible in evidence, to wit: (a) it must concern the crime and the surrounding circumstances of the declarant's death; (b) at the time it was made, the declarant was under a consciousness of an impending death; (c) the declarant was competent as a witness; and (d) the declaration was offered in a criminal case for homicide, murder or parricide in which the decedent was the victim. [17] In this case, the foregoing requirements are undoubtedly present. First, Sixto's statement that "they were three (3) but I recognize[d] only Alex Garma," is a statement of the surrounding circumstances of his death as the same refers to the identity of his assailants. Second, Sixto gave such declaration under the consciousness of an impending death as shown by the serious nature of his wounds, [18] which in fact resulted in his death several hours later.[19] Third, prior to his death, Sixto was competent to be a witness in court. And fourth, Sixto's dying declaration is offered in a criminal prosecution for murder where he was himself the victim. On the other hand, there can be no plausible objection against its admissibility as part of res gestae even if said statement was uttered by Sixto in response to a question posed by Herminigildo about the identity of the assailants.[20] This is because, the record bespeaks that such statement was made right after the shooting incident and before Sixto had the opportunity to contrive or devise a falsehood.[21]

Appellant interposes alibi as defense. According to him, from 7:00 to 10:00 o'clock in the evening of December 2, 1987, he watched television programs in the house of his grandfather Sotero Garma.[22] Corroborating appellant's testimony were those of Edilberto Califlores,[23] Simeon Sonido,[24] Maximo Pacis[25] and David Garma[26]-who all confirmed appellant's presence in Sotero's house during the night Sixto was gunned down. We are not persuaded. In the face of appellant's positive identification by the victim as one of the authors of the crime, his defense of alibi necessarily collapses. It is a settled rule that alibi can not prevail over a positive identification.[27] Appellant also impugns the credibility of the prosecution witnesses contending that their testimonies are inconsistent with each other in that: (1) Herminigildo and Gil testified that moments before his death, Sixto uttered that "he cannot survive," while Maria and Perlita did not recount such a remark; and (2) Maria and Perlita affirmed that the killing was triggered by the previous altercation between Sixto and appellant about the hay which, however, was not disclosed by Herminigildo and Gil.[28] To our mind, these alleged inconsistencies are not that material so as to cast serious doubts on the witnesses' credibility.[29] As correctly ruled by the Court of Appeals, these alleged inconsistencies are merely minor ones, attributable as they are, to the frailty of human memory at times. Neither can it be successfully argued that since the prosecution witnesses "could not give the definite words of Sixto,"[30]then their testimonies should have been taken with a grain of salt. A witness testifying on the dying declaration of the deceased need not reproduce exactly the words of the deceased as long as he is able to give its substance.[31] At any rate, the trial court which had the opportunity to observe the demeanor of herein prosecution witnesses found that their testimonies rang "with truth and sincerity."[32] We find no cogent reason to hold otherwise. However, we agree with the appellant that both the trial court and the Court of Appeals erred in appreciating the qualifying circumstance of treachery against him. Our settled rule is that treachery cannot be presumed,[33] but must be proved by clear and convincing evidence, or as conclusively as the killing itself. [34] In this case, the trial court declared that the shooting of Sixto was "sudden and unexpected,"[35]which cavalier pronouncement finds no basis from the record as there was no one who testified to such manner of assault described by the trial court. Neither may the presence of treachery be simply assumed, as what the Court of Appeals apparently did, from the mere fact that the fatal wounds were found at the back of Sixto. The location of the fatal wounds does not, by itself, compel a finding of treachery.[36] Such a finding must be based on some positive proof, and not be merely an inference drawn more or less logically from hypothetical facts.[37] In fine, we hold that appellant is nonetheless guilty, albeit of the crime of homicide only. Appellant's guilt has been proven by the prosecution through the dying declaration of the victim himself which evidence, we must stress, is an evidence of the highest order.[38] WHEREFORE, in view of the foregoing, the decision appealed from is hereby MODIFIED. We find appellant ALEX GARMA guilty beyond reasonable doubt of the crime of HOMICIDE. Considering the absence of any mitigating or aggravating circumstance and applying the Indeterminate Sentence Law in his favor, appellant is hereby sentenced to suffer an indeterminate penalty ranging from Ten (10) years and One (1) day of Prision Mayor, as minimum, to Sixteen (16) years, Two (2) months and One (1) day of Reclusion temporal, as maximum. The civil indemnity awarded by the Court of Appeals for the death of Sixto Selma in the amount of P50,000.00 is AFFIRMED. SO ORDERED. [G.R. No. 110873. September 23, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO FRANCISCO alias YOLING and ESTELITO FRANCISCO alias BOBOY, accused. LEONARDO FRANCISCO, accused-appellant. DECISION GONZAGA-REYES, J.: Accused-appellant Leonardo Francisco (hereafter LEONARDO), together with Estelito[1] Francisco (hereafter ESTELITO) and Alex Dacutara (hereafter ALEX), were charged before Branch 6 of the Regional Trial Court of Palo, Leyte, with the crime of murder in an information which reads: That on or about the 4th day of June, 1986, in the Municipality of Pastrana, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, with abuse of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault, stab and wound one Ricardo Mendoza with the use of a bolo and bamboo (Patong) which the said accused had provided themselves for the purpose, thereby hitting and inflicting upon said Ricardo Mendoza wounds which caused his death. Contrary to law.[2] Upon their arraignment, all three accused pleaded not guilty to the crime charged. [3] On December 3, 1987, during trial, ALEX died and consequently, the case against him was dismissed on January 12, 1988. The evidence for the prosecution consists primarily of the testimony of Veronica Mendoza (hereafter VERONICA), the wife of the victim, who claims that she personally witnessed the killing of Ricardo Mendoza (hereafter RICARDO) by the three accused. According to VERONICA, on June 4, 1986, at around 4:30 in the afternoon, she, together with RICARDO and their children, Jesus and Richard, aged nine and six respectively, were walking along a path on their way home from the house of a neighbor. RICARDO was walking slightly ahead, while VERONICA and the children followed behind at a distance of approximately two arms length. Suddenly, LEONARDO, ESTELITO and ALEX appeared behind RICARDO, coming from the sides of the path, which were lined with coconut trees and tall cogon grass.[4] LEONARDO and ALEX were each armed with bolos, while ESTELITO wielded a piece of bamboo about one meter long. LEONARDO delivered the first blow, hitting RICARDO on his back. This was followed by ESTELITO who hit the victim at the back of his head with a bamboo stick. Finally, ALEX hacked at RICARDOs back with a bolo. RICARDO fell face down on the ground. VERONICA rushed her children home and cried for help. Several policemen rushed to the scene of the crime, namely Benjamin Montanejos, Wilfredo Nierva, Arnulfo Tan, Antonio Diminico, and Benedicto Sequito. They brought the lifeless body of RICARDO to his house.[5] According to the testimony of Benjamin Montanejos, upon their arrival at the crime scene they interrogated VERONICA regarding the killing of RICARDO. VERONICA reported to the policemen that LEONARDO, ESTELITO and a certain Baby had killed her husband. [6] On June 7, 1986, ESTELITO surrendered to the mayor of Pastrana, admitting that he and ALEX killed RICARDO. [7] The post-mortem report revealed that the cause of the victims death was shock secondary to a blow over the head.[8] Dr. Verisimo Opiniano, who conducted the autopsy, testified that out of the four wounds inflicted upon RICARDO, two were probably caused by a sharp bladed instrument and one by a heavy and blunt instrument, like a large piece of wood. Dr. Opiniano further testified that, based on the location of these three wounds, it may be safely assumed that there were two or more assailants and that they inflicted the wounds while standing right behind the victim. The fourth wound was actually a contusion which the victim probably sustained by falling to the ground. [9]

As a possible motive for the killing of RICARDO, the prosecution claims that LEONARDO might have harbored some resentment against the Mendozas because sometime in October, 1985, LEONARDO and his parents went to the house of the victim and challenged them to a fight for allegedly throwing rat poison in their rice field. However, the entire matter was amicably settled in a confrontation before the barangay captain.[10] LEONARDOs defense consists of an alibi. He claims that he was in his house the whole day of June 4, 1986 entertaining visitors as it was the barangay fiesta. Among his visitors were Iluminado Daynata (hereafter DAYNATA), Jose Bigoy, Ricky Cornista, and Pacifico Nayan. DAYNATA was the last to leave LEONARDOs house at 5 p.m. After all his guests had left, LEONARDO went to sleep at 6:30 p.m. as he felt tired. He learned of the killing of RICARDO only the following day.[11] In direct contradiction of the prosecutions account, the defense claims that it was RICARDO and his wife who were angry with LEONARDO since some of their chickens died after eating the rat poison which he placed in his rice field. RICARDO challenged LEONARDO to a fight, causing the latter to have him summoned before the barangay captain. LEONARDO wanted RICARDO to execute an affidavit, but the barangay captain did not deem it necessary.[12] As regards ESTELITO, although he admits that he and ALEX killed RICARDO, he invoked the justifying circumstances of self-defense and defense of stranger. According to ESTELITO, on June 4, 1986, he and ALEX were walking to Barangay Sapsap to watch a cockfight when they met RICARDO on the road. RICARDO challenged ALEX to a fight and immediately drew his bolo and delivered a hacking blow at ALEX, which the latter was able to avoid. In defense of ALEX, ESTELITO hacked RICARDO with his bolo, hitting him just below the neck. ALEX was then able to pick up a piece of wood and he used it to strike RICARDO on the head. ESTELITO and ALEX hit RICARDO several more times until he fell to the ground.[13] The trial court[14] found LEONARDO and ESTELITO guilty of murder qualified by treachery and sentenced them as follows WHEREFORE, finding accused Leonardo Francisco alias Yoling and Estilito Francisco alias Boboy guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code and applying the Indeterminate Sentence Law, sentences Leonardo Francisco to an imprisonment of from TEN (10) YEARS and ONE (1) DAY to SEVENTEEN (17) YEARS and FOUR (4) MONTHS. The Court after appreciating the mitigating circumstance of surrender without any aggravating circumstance to offset the same in favor of accused Estilito Francisco, sentences said accused Estilito Francisco to an imprisonment of from SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal as maximum. Accused Leonardo Francisco and Estilito Francisco are hereby condemned to pay the heirs of Ricardo Mendoza an indemnify (sic) the sum of P30,000.00, without subsidiary imprisonment in case of insolvency. SO ORDERED.[15] The trial court held that the defense of alibi cannot prevail over the positive identification of the accused by the wife of the victim. The evidence for the defense sought to establish that it was impossible for LEONARDO to be at the scene of the crime at the time of its commission, but the trial court was unconvinced. First of all, the place where the killing took place is only about 400 meters from LEONARDOs house and can be reached by a few minutes walk. Secondly, the fact that the killing allegedly took place at 4:30 p.m., as testified to by VERONICA, coupled with the testimony of DAYNATA that he was at LEONARDOs house until 5 p.m., which is 30 minutes after the crime took place, does not help the theory of the defense since all the times testified to were mere estimates of the witnesses. The trial court pointed to LEONARDOs dissatisfaction with the outcome of his confrontation with the Mendozas before the barangay captain as his motive for wanting to harm or kill

RICARDO. Also, if the theory of the defense is followed that RICARDO had the intention of harming LEONARDO because of the death of his chickens, there would be no plausible explanation for RICARDOs allegedly challenging ALEX to a fight, although they were not together with LEONARDO. The court did not give credence to ESTELITOs claim of self -defense and defense of stranger because it found it quite unbelievable that he and ALEX did not sustain a single scratch if RICARDO indeed attempted to hack at them several times with his bolo.[16] Only LEONARDO appealed the trial courts decision to the Court of Appeals. Basically, he asserted in his appellants brief that the testimony of VERONICA should not have been given credence by the trial court because she is obviously a biased witness, being the wife of the victim, and it is uncorroborated. LEONARDO claims that his testimony is more convincing since it was corroborated by the testimonies of DAYNATA, who asserted that he was in LEONARDOs house at the approximate time of the killing, and by ESTELITOs declaration that LEONARDO did not take part in the killing of RICARDO. Moreover, even if VERONICAs testimony is to be believed, it does not support the finding of treachery because she said that the deceased was accosted by the accused, thereby precluding any treacherous initial attack. Finally, LEONARDO claims that the trial court erred in imposing the penalty which, taking into consideration the Indeterminate Sentence Law and the fact that there are no aggravating or mitigating circumstances, should have been TEN (10) YEARS and ONE (1) day to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY only. [17] The appellate court[18] affirmed the conviction of LEONARDO for murder, but it increased the penalty imposed by the trial court to reclusion perpetua and the civil indemnity to P50,000. It ruled that VERONICAs testimony bears the credibility necessary to establish the guilt of the accused beyond reasonable doubt. The fact that she is RICARDOs wife is not an indication that she testified falsely since mere relationship to the victim is not a ground for disbelieving a witness. Also, her testimony could not have been corroborated by any other witnesses since there were no other persons around when the killing took place, except for her very young children. The appellate court also stated that the defense of alibi cannot prevail over positive identification of the accused by a witness. For the defense of alibi to prosper at all, it must be proven by the accused that it was physically impossible for him to be at the scene of the crime or its vicinity at the time of its commission. Accused LEONARDO failed to discharge this burden. Finally, the appellate court upheld the trial courts finding that treachery attended the commission of the crime since the attack was sudden, upon an unarmed victim who had absolutely no inkling of the impending tragedy, and it was made from behind the victim, insuring the absence of any risk to the assailants.[19] The determination of LEONARDOs guilt depends mainly on whether or not the positive identification of the accused by VERONICA shall prevail over the denial and alibi offered by the accused. Alibi is the weakest defense, being easy to fabricate and difficult to disprove.[20] A positive identification of the accused, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial. [21] When there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.[22] The lower courts were fully justified in believing VERONICAs testimony. Her clear and direct testimony regarding the details of the assault, including the identity of the assailants, the weapons used, the order in which the blows were delivered and the parts of the victims bo dy where the blows landed,[23] which very closely corresponded with the descriptions of RICARDOs wounds detailed in the post-mortem report, is worthy of credence. It is most unlikely that a witness could have related all the details of a crime with such clarity and lucidity unless she was herself present at the time the killing transpired.

The defense has not pointed to any improper motive which might have impelled VERONICA to implicate any of the accused in the killing of her husband. Even LEONARDOs claim that the Mendozas were angry with him because in October, 1985 some of their chickens were poisoned by the rat poison placed by LEONARDO in his rice field is not sufficient to taint VERONICAs straightforward testimony. First of all, the prosecutions version of this incident is in direct contradiction with that of LEONARDOs. VERONICA asserted that it was LEONARDO and his father who challenged them to a fight because they thought that the Mendozas had thrown rat poison in LEONARDOs field. Secondly, the matter was amicably settled before the barangay captain. It is highly improbable that VERONICA would be capable of inventing a story right after the violent killing of her husband just to get back at LEONARDO for a minor incident which happened more than one year ago. Contrary to the assertions of accused-appellant, the fact that VERONICA is RICARDOs wife does not detract from her credibility since the relationship of a witness to the victim, whether by consanguinity or affinity, is not an indication of the witness impaired credibility nor does it taint her positive and clear testimony and render it unworthy. [24] In fact, the relationship with the victim would render the testimony more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit.[25] The accused-appellant claims that VERONICAs testimony should not be given credence because it is uncorroborated, whereas his defense of alibi is corroborated by the testimonies of DAYNATA and ESTELITO. However, it has been held in a long line of cases that the testimony of a single witness, if found convincing and credible by the trial court, is sufficient to support a finding of guilt beyond reasonable doubt because truth is not established by the number of witnesses but by the quality of their testimonies.[26] Corroborative evidence is necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observation had been inaccurate,[27] but as already stated, the defense has not offered any reason for the Court to suspect the testimony of the prosecution witness herein. Notwithstanding, VERONICAs testimony was in fact corroborated by Benjamin Montanejos (hereafter MONTANEJOS), who testified that VERONICA told him and his companions upon their arrival at the scene of the crime that LEONARDO, together with ESTELITO and ALEX, were responsible for RICARDOs death.[28] Her statement to MONTANEJOS may be considered as part of the res gestae. The requisites of res gestae as an exception to the hearsay rule are (1) that the principal act or the res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.[29] When VERONICA told MONTANEJOS and his companions that the three accused killed RICARDO she must have still been in a state of shock from having personally witnessed the brutal killing of her husband. Her state of mind at this point would not have permitted her to fabricate a story regarding the event which had just transpired. We now come to the matter of the alibi offered by LEONARDO. For the defense of alibi to prosper, it must be established by positive, clear and satisfactory proof that (1) the accused was somewhere else when the offense was committed, and (2) it was physically impossible for the accused to have been present at the scene of the crime or its immediate vicinity at the time of its commission.[30] The Supreme Court has ruled where there is even the least chance for the accused to be present at the crime scene, the alibi will not hold.[31] We agree with the trial courts finding that the accused -appellant has failed to show that it was impossible for him to be at the scene of the crime at the time the killing took place. First of all, the time of the assault was merely estimated by the prosecution. This is apparent from the wording used in plaintiff-appellees brief wherein it is stated that [a]t about 4:30 oclock in the aftern oon of June 4, 1986, the victim Ricardo Mendoza, his wife Veronica Mendoza and their childrenwere walking along a pathway on their way home.[32] According to the accused-appellant, he was in his house at the time the killing took place entertaining visitors and he offers the testimony of DAYNATA, who was the last person to have allegedly left the formers house on that day. DAYNATA testified that he was with LEONARDO on the afternoon of June 4, 1986 until he left the latters house [a]t past 5:00. [33] It is

apparent that DAYNATA could only give an approximate and not an exact time of departure. Even LEONARDO admitted on cross-examination that he did not have a watch and could only give an estimate of the time.[34] Thus, it has not been proven that it was impossible for LEONARDO to have been at the crime scene even though it is true that he had guests over at his house on that day. The trial court found that place where the killing took place was only 400 meters from the house of LEONARDO. Accused-appellant also testified that his house is about 400 to 500 meters from the scene of the crime.[35] In one case, where it was proven that the accused was only three kilometers from where the crime was committed, the Court held that it was a manageable distance to travel in a few minutes.[36] Certainly, a distance of even 500 meters, which is equivalent to only half a kilometer, may similarly be reached in a few minutes. Thus, accused-appellant has clearly failed to substantiate his alibi. Likewise, ESTELITOs claim that LEONARDO was not involved in RICARDOs k illing is an outright prevarication in the face of VERONICAs positive identification of the three accused. If VERONICA was lying, then how could she have accurately identified the perpetrators of the heinous deed, including ESTELITO and ALEX, both of whom she had no reason to falsely implicate, as early as June 4, 1896, when ESTELITO only surrendered and admitted to the killing three days after? We hold that the testimony of VERONICA, which includes the positive identification of the three accused, must prevail over the defense proffered by LEONARDO of denial and alibi. Treachery attended the killing of RICARDO. There is treachery when the offender commits the crime employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.[37] In the present case, the fact that the accused were all armed and attacked the victim suddenly and from behind, while he was walking home with his family, unarmed, without any inkling or warning that he would be the subject of a violent attack and deprived of any opportunity to defend himself, constitutes treachery. The aggravating circumstance of abuse of superior strength is already absorbed in treachery and can no longer be appreciated separately. Although evident premeditation was alleged in the information, it was not established by the prosecution. To establish evident premeditation, there must be proof of (1) the time when the accused determined to commit the crime, (2) an overt act manifestly indicating that the accused clung to his determination to commit the crime; and (3) the lapse of a sufficient period of time between the determination and the execution of the crime, to allow the accused an opportunity to reflect upon the consequences of the act.[38] None of these elements were proven. The lower courts were correct in not appreciating this particular circumstance. At the time the crime was committed, the imposable penalty for murder under the Revised Penal Code was reclusion temporal maximum to death. In the instant case, there being no aggravating or mitigating circumstances attendant in the commission of the crime, the appellate court correctly imposed upon the accused the penalty of reclusion perpetua, the medium period of the prescribed penalty. We likewise affirm the appellate courts award of P50,000 as indemnity ex delicto. [39] WHEREFORE, the decision of the appellate court is hereby AFFIRMED. Costs against accused-appellant. [G.R. Nos. 118940-41. July 7, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO MEJIA y VILLAFANIA, EDWIN BENITO, PEDRO PARAAN, and JOSEPH FABITO, accused-appellants. DECISION DAVIDE, JR., J.:

In the evening of 10 March 1994, along the expressway at Barangay Ventinilla, Sta. Barbara, Pangasinan, several persons on board a passenger jeepney driven by Teofilo Landingin attacked the latter and a passenger, Virgilio Catugas, thereby inflicting upon them multiple stab wounds. Landingin was pulled out from his seat and dumped on the shoulder of the road. One of the attackers took the wheel of the jeepney and drove away. Catugas was thrown out to the middle of the road when the jeepney started to move away. Landingin died as a consequence of the injuries he sustained. Catugas survived. Held to account for the above acts were Gregorio Mejia, Edwin Benito, Pedro Paraan, Joseph Fabito, Romulo Calimquim, one alias Dennis, Alex Mamaril, one alias Mondragon, and another unidentified person. Mejia and Benito were taken into police custody a few hours after the incident; Paraan, the following day; and Fabito, five days after. Calimquim was found dead three days after the incident in question, while the others have remained at large. Three separate criminal complaints for murder,[1] frustrated murder,[2] and violation of R.A. No. 6539 (Anti Carnapping Act of 1992, as amended)[3] were filed against them with the Municipal Trial Court of Sta. Barbara, Pangasinan. Despite service on them of subpoenas requiring submission of counter-affidavits, accused Mejia, Benito, Paraan, and Fabito did not submit their counter-affidavits. On 9 May 1994, Judge Lilia C. Espanol issued an order[4] declaring the accused to have waived their right to be heard in preliminary investigation; finding a prima facie case against the accused; recommending that they be charged with and prosecuted for the crimes of murder, frustrated murder, and violation of R.A. No. 6539, as amended; and ordering that the records of the cases be forwarded to the Office of the Provincial Prosecutor for appropriate action. After appropriate proceedings, the Office of the Provincial Prosecutor of Pangasinan filed with the Regional Trial Court (RTC) of Dagupan City three separate informations for murder, frustrated murder, and violation of the Anti-Carnapping Act of 1972, as amended, against the aforenamed persons. The informations were docketed as Criminal Cases Nos. 94-00617-D, 94-00619-D, and 94-00620-D, respectively. The first was later amended. The accusatory portions of the informations read as follows: CRIMINAL CASE NO. 94-00617-D (as amended) That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives with intent to kill, treachery, evident premeditation and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab TEOFILO LANDINGIN inflicting upon him stab wounds which caused his instant death to the damage and prejudice of his heirs. Contrary to Art. 248 of the Revised Penal Code as amended by Republic Act No. 7659.[5] CRIMINAL CASE NO. 94-00619-D That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with knives and with intent to kill, treachery, evident premeditation, and taking advantage of superior strength, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously attack and stab VIRGILIO CATUGAS Y CASTAEDA inflicting upon him multiple stab wounds, the accused having then performed all the acts of execution which would have produced the crime of Murder as a

consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused and that is due to the timely and able medical assistance rendered to said Virgilio Catugas y Castaeda which prevented his death to his damage and prejudice. Contrary to Art. 248 in relation with Art. 6 of the Revised Penal Code. [6] CRIMINAL CASE NO. 94-00620-D That on or about March 10, 1994 in the evening along the expressway at barangay Ventinilla, Municipality of Sta. Barbara, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with knives by means of violence against person by stabbing to death TEOFILO LANDINGIN, owner-driver of a passenger jeep bearing Plate No. APP432 with marking Lovely and thereafter with intent to gain, conspiring, confederating and mutually helping one another did then and there wilfully, unlawfully and feloniously take and drive away said passenger jeep bearing Plate No. APP-432 with marking Lovely owned and driven by Teofilo Landingin without the latters consent, to the damage and prejudice of his heirs. Contrary to Republic Act 6539 as amended.[7] The first two were assigned to Branch 44 of the RTC of Dagupan City presided by Judge Crispin C. Laron (hereafter, LARON court) and thereafter consolidated and jointly tried. The third was assigned to Branch 43 of the said court presided by Judge Silverio Q. Castillo (hereafter, CASTILLO court). At their arraignments, Mejia, Benito, Paraan, and Fabito entered a plea of innocence in each case. I THE CASES IN THE LARON COURT

jeepney and at the signboard portion of the jeepney and the latter sometimes turned his face toward the back where Catugas was seated. Catugas had further observed Benitos face, ears, and eyes.[9] He also recognized accused Mejia, Fabito, and Paraan.[10] The nine passengers told Landingin that they were bound for Pangasinan Village Inn (PVI) in Bued, Calasiao. But when they reached PVI, one of them said that his companions did not know where they were going, and informed Landingin that he would take care of the fare upon reaching Nansangaan, Sta. Barbara, Pangasinan. Upon reaching Nansangaan, one of the nine passengers asked Landingin to drive a little farther. Later, Mejia asked Catugas whether he was Landingins companion; Catugas answered in the affirmative. Mejia then announced: [T]his is a hold-up; while Benito said: [N]obody will be able to be saved his life [sic]. Another companion of Mejia said: Proceed. All of the nine drew their daggers and stabbed Landingin and Catugas.[11] Landingin died on that same evening. Dr. Cristito Garcia, who conducted an autopsy on Landingins cadaver, found three stab wounds - two of which were fatal. According to him, the cause of Landingins death was cardiorespiratory arrest resulting from hypovolemic shock due to internal hemorrhage.[12] Nora Landingin, wife of Teofilo Landingin, spent P1,500 daily during the wake of her husband; P12,000 for his burial; and P16,000 for the tomb. Nora felt sad because of his death.[13] On the other hand, Catugas, who was pushed out of the jeepney and landed on the road, was brought by some people to the Villaflor Memorial Hospital. [14] Dr. Roberto Valenzuela performed on Catugas exploratory laparatomy debridement and found three multilacerations in the right upper extremities and several others on the left upper extremities which could have been caused by bladed instruments.[15] Catugas survived and was confined for seven days. He spent more than P50,000 for his hospitalization and medical expenses. The hospital billed him in the amount of P44,667.25.[16] In the same evening of 10 March 1994, while Policeman Dominguillo Gulen of the Mabini Police Station, Mabini, Pangasinan, was approaching his residence at the poblacion in Sual, Pangasinan, on board a police patrol car, he saw six men walking in front of his house. When he stopped the car, the men ran away. He gave chase and caught two of them, namely, accused Mejia and Benito. Gulen thought that they belonged to an akyat-bahay gang. When asked what they were doing, the two answered that they were not doing anything and that they were not robbers. They told Gulen that they were from Sta. Barbara. Benito even showed his drivers license and told Gulen that he did not commit any crime and that he was willing to go to the police station. Gulen then brought the two and turned them over to the police station in Sual, Pangasinan.[17] Policeman Bernardo Clemente, who was the desk officer at 1:00 a.m. of 11 March 1994, entered in the police blotter this turn-over and talked to the two. In the course of their conversation, Benito reported that they rode on a jeepney, which was abandoned somewhere in Sual. Clemente decided to make a follow-up of this report. With Benito as their guide, Clemente and three other policemen were able to find the jeepney with the marking LOVELY in Sitio Nipa, Barangay Baguioen, Sual, Pangasinan. The jeepney had bloodstains on the front and back seats. They brought it to the police station and had the matter recorded in the police blotter. Clemente then instructed the radio operator to call the police station of Sta. Barbara and inform it of the turn-over of Mejia and Benito. At 1:45 a.m. of 11 March 1994, the PNP elements of Sta. Barbara Police Station came and received the two, as well as the passenger jeepney.[18] Also on 11 March 1994, at 12:00 noon, some concerned citizens of Sual apprehended Joseph Fabito in Sitio Looc, Poblacion Sual, as a murder suspect. He was turned over to the Sual Police Station. After having been informed of this arrest, the Sta. Barbara Police Station took him into its custody. These facts were entered in the Sual Police Station blotter.[19]

In Criminal Case No. 94-00617-D (Murder) and Criminal Case No. 94-00619-D (Frustrated Murder) in the LARON court, the prosecution presented the following witnesses: Virgilio Catugas, policemen Dominguillo Gulen and Bernardo Clemente, Dr. Cristito Garcia, Ma. Nora Landingin, and Dr. Roberto Valenzuela. Virgilio Catugas was recalled as rebuttal witness. In their defense, accused Mejia, Benito, Paraan, and Fabito took the witness stand. They also presented as additional witnesses Roberto Lambot, Shirley Lomboy, Conrado Benito, policeman Bernardo Clemente, and Felicidad Fabito in their evidence in chief and Julia Paraan as sur-rebuttal witness. The evidence for the prosecution in these cases may be summarized as follows: At around 7:00 p.m. of 10 March 1994, Virgilio Catugas was in front of the CS1 Supermarket in Dagupan City waiting for a transportation to take him to his home at Talibaew, Calasiao, Pangasinan. Later, a passenger jeepney plying the Dagupan City - Calasiao route and driven by Teofilo Landingin arrived. He boarded it and occupied that portion of the passengers' seat behind the drivers seat. There were already some passengers inside the jeepney, but they disembarked before the jeepney reached the boundary of Dagupan City and Calasiao, leaving behind Landingin, Catugas, and two other passengers.[8] When the jeepney reached the MacArthur Highway in San Miguel, Calasiao, nine persons flagged down the jeepney and boarded it. One of them, whom Catugas identified to be accused Edwin Benito, sat beside the driver; the rest took the passenger seats behind the drivers seat. Catugas fully recognized Benito because there was light at the ceiling of the

The accused admitted to having flagged down and boarded Landingins jeepney that fateful evening of 10 March 1994, but denied having committed the crimes. They claimed that it was Romulo Calimquim and his companions who killed Landingin, stabbed Catugas, and drove away the jeepney. The following is a summary of their version of the events. Edwin Benito, a resident of Ventinilla West, Sta. Barbara, Pangasinan, was the driver of the Elf truck of Lito Lomboy of Bued, Calasiao, Pangasinan, which was used in hauling sand and gravel. His co-accused Mejia, Paraan, and Fabito were his helpers. At around 3:00 p.m. of 10 March 1994, after they completed delivering sand and gravel, the accused returned the truck and went to the house of Fabitos brother -in-law in San Miguel, Calasiao. After two hours of waiting in vain for the brother-in-law, Paraan suggested that they go to the house of his future brother-in-law in Bacayao Norte, Calasiao. After some snacks they proceeded to the town proper and strolled for a while. Then, Benito thought that it was time to go home to Sta. Barbara and suggested that they should. They proceeded to a waiting shed near the National High School to wait for a transportation for Sta. Barbara. At the waiting shed, they saw Romulo Calimquim with three other companions, who were also waiting for a transportation for Sta. Barbara. Calimquim then flagged down an approaching passenger jeepney. He and his companions boarded it. So did Benito and his companions. Calimquim sat beside the driver. The rest took the back seat.[20] According to Paraan, it was Alex Mamaril, the man with a huge body, who sat beside the driver.[21] At the junction of the roads leading to the Municipal Hall of Sta. Barbara and that leading to the national highway, the man who sat beside the driver (Calimquim, according to Benito; Mamaril, according to Paraan) ordered the driver to proceed to the national highway; the driver did. But after reaching the highway, in Ventinilla, Sta. Barbara, the former ordered the latter to stop, announced that this is a hold up, then stabbed the driver several times, pulled his body out of the jeepney, took over the wheel, and drove the jeepney. [22] In the meantime, at the back seat, one of the companions of Calimquim pointed a knife at Benito; while the others told Benitos companions to lie on their belly. It was when Catugas attempted to fight back that he was stabbed.[23] Catugas was then thrown out of the jeepney.[24] Benito and his companions were prevented by the group of Calimquim from alighting from the jeepney. Upon reaching a mountain in Sual, Pangasinan,[25] the man on the wheel ordered Benito, Mejia, Paraan, and Fabito to alight from the jeepney. The group of Calimquim pointed knives[26] and a gun[27] at them. Then suddenly there was a light coming from below. They ran away from the group of Calimquim.[28] Benito and Mejia were together.[29] Later, a policeman saw them. The two told the policeman that they are not "troublesome persons. The policeman brought them to the Police Station of Sual. There, Benito reported what had happened and accompanied the policemen to the place where the jeepney in question was located.[30] Afterwards, the two were detained at Sta. Barbara Police Station. While in detention, they were informed that Calimquim was killed and his body was found in Alaminos.[31] Paraan lost his way. He returned to Sta. Barbara only on 14 March 1994 and went to the house of Roland, his brother-in-law, in Bacayao Norte, to ask him to request a barangay councilman to accompany him to the police station. It was the barangay captain who accompanied him the following day to the police station. There, the police authorities told him that he was among the assailants of Landingin and that he was the one who stabbed Catugas in the night of 10 March 1994 and one of the suspects in the carnapping of the jeepney of Landingin.[32] Paraan was forthwith placed inside the jail. Fabito stayed for awhile in the mountain. At 2:00 a.m. of 11 March 1994, he was by the seashore. He stayed there until 6:00 a.m. and inquired from someone the location of the police station. He went to that station which happened to be Sual Police Station. There, he

narrated to the policemen what had happened. When a policeman asked him whether he was the killer, he answered in the negative. At around 1:00 p.m., he was brought to the Sta. Barbara Municipal Jail, where he was detained for three months. Then, he was committed to the Provincial Jail.[33] Sometime after Catugas was discharged from the hospital and was already driving a tricycle, the parents of the accused met with him and informed him that the accused told them that they (the accused) did not commit any wrong. Catugas answered that he had suffered several wounds and spent much for his hospitalization and that since the accused were the ones apprehended, he would just tell a lie so he could recover the amounts he spent. Catugas then asked P20,000 from each of the accused, or a total of P80,000, and repeated this demand five to six times.[34] The defense, through the testimony of Policemen Bernardo Clemente, also proved that Romulo Calimquim died due to a gunshot wound on 13 March 1994 in Barangay Paitan West, Sual, Pangasinan, as evidenced by Entry No. 4338 of Page 260 of the Police Blotter.[35] On rebuttal, Catugas insisted that it was accused Edwin Benito who stabbed Landingin and that accused Mejia, Paraan, and Fabito were the ones who stabbed him. He further declared that it was the parents of the accused who offered to pay him, but he refused because such an offer could not be accepted by [his] conscience.[36] The defense then presented Julia Paraan as surrebuttal witness. She denounced as untrue the testimony on rebuttal of Catugas that the parents of accused were the ones who offered to pay him money. Julia declared that they visited Catugas to ask him whether it was true that their children committed the crime. On their first visit, Catugas told them that he could not yet answer that question; but when they returned, Catugas told them that they had to pay the aggregate sum of P80,000, or P20,000 per family of the accused.[37] The trial court gave full credit to the version of the prosecution and relied heavily on the identification of the accused by Catugas, the absence of ulterior motive on the part of the latter, and the offer of the parents of the accused to compromise the cases. In its decision dated 17 November 1994,[38] the LARON court convicted accused Mejia, Benito, Paraan, and Fabito of the crime of murder and of frustrated murder, with treachery as the qualifying circumstance and nighttime and band as aggravating circumstances. Accordingly, it sentenced the first three accused to suffer the penalty of death for the crime of murder; and ten years and one day of prision mayor to seventeen years, four months, and one day of reclusion temporal for the crime of frustrated murder. It credited Paraan with the privileged mitigating circumstance of minority, he being only seventeen years old at the time of the commission of the crimes charged; and sentenced him to reclusion perpetua for murder, and six years of prision correccional to ten years and one day of prision mayor for frustrated murder. The Court also ordered the four accused to pay the heirs of Teofilo Landingin the amounts of P50,000 as death indemnity; P16,000 for the cost of the tomb; and P12,000 for funeral expenses; and to pay Catugas the amount of P44,687.25 for hospital expenses, plus costs. II THE CASE IN THE CASTILLO COURT

In Criminal Case No. 94-00620-D (violation of the Anti-Carnapping Act) in the CASTILLO Court, the prosecution presented as its witnesses Virgilio Catugas and Nora Landingin. The former was recalled as rebuttal witness. The accused Mejia, Benito, Paraan, and Fabito took the witness stand and presented as additional witnesses Conrado Benito and Felicidad Fabito. Their testimonies were substantially the same as those they made in the murder and frustrated murder cases in the LARON court.

Prosecution witness Virgilio Catugas added that after Landingin was stabbed, he was thrown out of the jeepney to the shoulder of the road and that one of the culprits took the wheel of the jeepney, started off its engine, and drove off.[39] He further declared that while he was confined at the hospital, the policemen of Sta. Barbara investigated him, showed him pictures of the suspects, supplied the suspects names, [40] and took his statement.[41] After he was discharged therefrom, he was able to talk with the father of accused Benito. He told the father of his hospitalization expenses and askedP80,000, as a settlement of the case, to be paid by the parents of the accused on an agreed date; but before that date came, he had already testified against the accused.[42] Prosecution witness Nora Landingin, widow of Teofilo Landingin, further testified that her husband owned the passenger jeepney in question, as evidenced by Certificate of Registration No. 19253856,[43] and Official Receipt No. MVRR 91354948.[44] The jeepney was worth P140,000.[45] The CASTILLO court gave full faith to the testimony of Virgilio Catugas. It debunked the version of the defense on account of the following inculpating evidence, which, according to it, bolstered its finding that the accused were the authors of the crime charged: 1. Accused Gregorio Mejia, Edwin Benito, Joseph Fabito and Pedro Paraan speak of innocence and fear for their lives during the ruthless incident, unfortunately they never sustained any bodily injury on their bodies. If the intention of Mok Calimquim and company is to hurt anybody, they could not have concentrated on the persons of Teofilo Landingin and Virgilio Catugas only but they should have also inflicted stabbing thrusts against their persons (accused). 2. They (accused) posited that for fear of their lives they did not do anything except to passively stay at the back seat of the jeepney motionless from the place of stabbing incident in Sta. Barbara, Pangasinan up to the mountains in Sual, Pangasinan. Again, if one of the motives of Mok and company is to carnapp [sic] the passenger jeepney of Teofilo Landingin then the logical conclusion that can be had in the instant situation is for the group of Mok to liquidate the driver and all passengers for that matter, including the four (4) accused to eliminate the presence of eyewitnesses. Unfortunately, the four (4) accused joined the group of Mok in going to Sual, Pangasinan without offering any slight resistance in the premises. The natural conclusion that can be derived thereat is that, Mok and company belonged to the group of the four (4) accused who were responsible in perpetrating the offense charged. 3. Assuming en gratia argumenti that Mok and company are the real offenders, why is it that during the long span of travel from Sta. Barbara to Sual, they never made any attempt to jump off the passenger jeepney; neither did they show any positive signs to invite the attention of PNP members stationed along the long route starting in Dagupan City, Binmaley, Lingayen, Bugallon, Labrador, Pangasinan. 4. Accused Gregorio Mejia and Edwin Benito steadfastly claim innocence of the crime charged. In fact, they averred that upon reaching Sual, Pangasinan,

they reported to the responding peace officers what happened to them and that their reports was recorded in the Police Blotter of Sual Station. The assertion of accused Benito and Mejia is tainted with absolute falsity and is debunked by the entry in the Police Blotter of Sual Police Station (Exh. G); the subject certification negates accuseds statement of innocence. The subject entry which is contained in the Book of Events of Sual Police Station belies any complaint/report made by accused Edwin Benito/Gregorio Mejia that they were kidnapped or deprived of their liberty with the use of guns and bladed weapons. Upon the other hand, the Certification squarely bespeaks of the incarceration/detention of said accused (Mejia and Benito) at Sual Police Station for they were suspected of having carnapped the passenger jeepney involved in the above case. 5. With respect to accused Joseph Fabito and Pedro Paraan, they likewise vehemently denied the accusation lodged against them. Unfortunately, their conclusion of innocence crumbled when they joined the group from the crime scene starting in Sta. Barbara, Pangasinan up to their destination in Sual, Pangasinan. In fact when they reached Sual, Pangasinan they scampered and run away to different directions to avoid apprehension. Instead of proceeding to the Sual Police Station or making any report to the nearest authority i.e. Barangay Captain of the place they decided to escape which they did with impunity. The records in the Police Blotter of Sual is negatived (sic) of any entry about the whereabouts of accused Paraan and Fabito.[46] The court then convicted accused Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito guilty of the violation of the Anti-Carnapping Act of 1972, as amended. It sentenced the first three accused to death; and Paraan, to reclusion perpetua on account of the privileged mitigating circumstance of minority. It also ordered them to pay the costs. III THE APPEALS AND ASSIGNMENT OF ERRORS

Although review in cases where the death penalty is imposed by the trial court is automatic pursuant to Section 22 of R.A. No. 7659, [47] the convicted accused filed with this Court their notices of appeal from the decision of the LARON court and of the CASTILLO court on 18 November 1994 and 22 February 1995, respectively. Criminal Cases Nos. 94-00617-D and 94-00619-D were docketed in this Court as G.R. Nos. 118940-41, and Criminal Case No. 94-00620-D was docketed as G.R. No. 119407. On 2 February 1996, after they filed separate Appellants Briefs in G.R. Nos. 118940-41 and in G.R. No. 119407, the appellants filed a motion for the consolidation of these cases, which we granted on 27 February 1996. In their Appellants Brief in G.R. Nos. 118940-41, the appellants impute upon the trial court the following errors: (a) in giving full faith and credence to the unsubstantiated testimony of prosecution witness Virgilio Catugas relative to the incident in question; (b) in holding them as the persons who stabbed the jeepney driver and Virgilio Catugas in the evening of 10 March 1994 despite the fact that clear and convincing evidence were proffered to point at the real culprits, Romulo Calimquim and his companions; (c) in rendering a verdict of conviction notwithstanding the failure of the prosecution to prove their guilt beyond reasonable doubt;

and (d) in convicting them of the crimes charged instead of the crimes homicide and frustrated homicide -- on the assumption that they are guilty. Being interrelated, the appellants discussed jointly these assigned errors. They submit that: (1) The uncorroborated testimony of Catugas on the identification of the appellants leaves much to be desired. He should not be believed, for he could not even remember who among the appellants were wearing short pants, hat, and shoes at that time. If policeman Gulen could not even identify in court appellant Mejia whom he apprehended in the evening of 10 March 1994 and brought to the Sual Police Station, it was with more reason that Catugas could not have identified the assailants since it was nighttime. The possibility that Catugas got confused, if not mentally and physically drained, as a result of the shocking incident is not far-fetched. There is then a very strong and compelling reason to believe that Catugas mistook the appellants as the real hold-uppers. (2) Catugas told Conrado Benito and Felicidad Fabito that their children did not commit any wrong, but Catugas vacillated and testified falsely against accused-appellants when they were not able to produce the amount of P20,000.00 each as earlier demanded from them. Catugas denial of their testimony is self-serving and cannot overcome the positive testimony of Conrado and Felicidad. (3) The actuations of appellants specifically that of Edwin Benito augurs well with their claim of innocence, when they were apprehended. Benito readily showed his drivers license, answered questions propounded by policeman Clemente, and without hesitation he helped or guided the policemen in locating the jeepney at the place where it was abandoned. He did not try to hide or conceal anything when he was confronted about the incident. Moreover, when Benito and Mejia were picked up by a policeman on that fateful night, they were not tainted with blood. (4) On the assumption that they are guilty they could only be liable for homicide and frustrated homicide, since treachery was not established. In their Appellants Brief in G.R. No. 119407, they make the following assignment of errors: (a) the facts charged in the information do not constitute violation of the crime of AntiCarnapping Act of 1972, as amended; (b) The court a quo erred in convicting them of the crime charged on the basis of surmises and conjecture; and (c) the court a quo erred in convicting them by relying fully on the evidence of the prosecution and completely disregarding the evidence of the defense. As to the first, the appellants argue that intent to gain, which is an essential ingredient of the crime of carnapping, was not proved. They claim that from the evidence adduced it is very clear that the incident was only a hold-up and that the jeepney was taken to Sual as escape vehicle. In support of the second and third assigned errors, which they discussed jointly, the appellants submit that: (1) The trial courts conclusion on their culpability was based on mere surmises and conjectures and contradicted by the evidence on the record. The fact that the group of Calimquim did not hurt any of the four appellants and that the latter offered no resistance does not prove appellants membership in Calimquims group. That they did not even jump off the passenger jeepney or show positive signs to invite the attention of the PNP stationed along the route from Dagupan City to Sual, it was because of fear since Calimquims group

pointed knives at each of them and ordered them to lie down in stooping position. The absence of conspiracy was shown by the fact that in Sual, after they were released as hostages, they ran in separate directions and did not join the group of Calimquim. (2) The entry in the Sual Police Station police blotter that Benito and Mejia were suspected of having carnapped the passenger jeepney does not bind them, for it was made by a police officer and was contrary to what they had reported. (3) There is no basis for the conclusion that Paraan and Fabito had escaped. (4) The trial court should not have relied on the testimony of Catugas whose identification of the appellants was based only on the pictures and on the information of the policemen. It was impossible for Catugas to narrate in detail the participation of each accused, considering that the light in the jeepney was dim and his principal attention was concentrated on defending himself. (5) Appellants reporting of the incident disproved their mem bership in the group of Calimquim. If they were members, their natural course would have been to hide from the authorities. Their voluntary submission to the police immediately after the incident should have been given credence as part of the res gestae. In the Consolidated Appellees Brief, the Office of the Solicitor General (OSG) urges us to affirm in toto the challenged decisions for failure of the appellants to show that the trial court committed error in finding the prosecution evidence clear, sufficient, and convincing to convict. Catugas, who made an eyewitness account, had the opportunity to observe the appellants during the commission of the crime and had no ill-motive to implicate the appellants falsely. As to the charge that he perjured because the appellants were not able to produce the amount of P80,000 which he allegedly demanded from them, the same should not be believed. The truth is, it was the parents of the appellants who approached Catugas and offered him P80,000 in order that he would not testify against the appellants. Catugas did not accept the offer, as it was against his principles to tell a lie. The OSG also maintains that treachery was duly proved and, hence, the trial court was correct in convicting the appellants of murder for the death of Teofilo Landingin and frustrated murder for stabbing Virgilio Catugas. Their conviction for violation of the Anti-Carnapping Act is also proper, since their main purpose was to get the jeepney and they killed Landingin in order that they could get it. They presented no evidence to prove that they ran away with the jeepney for any lawful purpose. In their Consolidated Reply Brief, the appellants try to show that the identification made by the prosecution witness Catugas cannot be denominated as clear, positive, and convincing; for, while it may be true that he could have taken glimpse or glance at the faces of all the accused-appellants, this fact alone is not adequate and fell short of the required test of positive identification. They strongly suggest that Catugas had ill-motive to testify falsely against them in that he was not paid the P80,000 he demanded. IV THE CRIMES COMMITTED AND THE ISSUE OF CULPABILITY OF APPELLANTS

Before we go any further, remarks on some procedural matters are in order. The crimes charged in the informations filed before the LARON court and CASTILLO court are irretrievably linked with or related to one another. They arose out of the same incident, are founded on the same factual milieu, and would be proved by testimonies of the same

witnesses. The three cases then should have been consolidated and jointly tried in one branch of the RTC of Dagupan City. What were jointly tried were only the cases for murder and frustrated murder. Section 14 of Rule 119 of the Rules of Court provides: SEC. 14. Consolidation of trials of related offenses. Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the courts discretion. The purpose or object of consolidation is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigants.[48] In Raymundo v. Elipe,[49] we held that although consolidation of several cases involving the same parties and the same subject matter is one addressed to the sound discretion of the trial court, joint hearing becomes a matter of duty if two or more cases are tried before the same judge, or even filed with the different branches of the same court, provided one of such cases has not been partially tried. We are unable to understand why neither the LARON court or the CASTILLO court nor any of the parties caused, or moved for, a consolidation of the case for violation of the AntiCarnapping Act (which has the higher docket number) with the cases for murder and frustrated murder in the LARON court (which have lower docket numbers). It was only after the filing of their separate Appellants Brief in G.R. Nos. 118940 -41 and in G.R. No. 119407 that the appellants moved to consolidate the latter with the former. This failure to consolidate the three cases at the trial court level could contribute some difficulty in the appreciation of the evidence. The principal witnesses of the parties testified in all the three cases. Yet, the assessment of their testimony and credibility in the LARON court must not be influenced by their testimonies in the case before the CASTILLO court, and vice versa. In the LARON court, prosecution witness Catugas was unclear in some details of the incident, but clear in the CASTILLO court. Upon the other hand, there were details he disclosed in one of the courts which were not given in the other court. The same observation may be had on the testimonies of the appellants before both courts. As one reads the transcripts of the testimonies of these witnesses in both cases, it would be quite difficult to avoid forming impressions in light of the totality of their testimonies in both courts. Our minds and mental processes must be kept away from the pitfalls of such impressions, for the rules on evidence and the constitutional presumption of innocence in favor of the appellants dictate that we resolve the appeals in the cases before the LARON court and the case before the CASTILLO court solely on the basis of the evidence presented before such courts, respectively. The next preliminary matter to be resolved is whether the crimes of murder in Criminal Case No. 94-00617-D and frustrated murder in Criminal Case No. 94-00619-D are absorbed in the violation of the Anti-Carnapping Act in Criminal Case No. 94-00620-D. R.A. No. 7659 which took effect on 31 December 1993[50] is applicable to these cases because the crimes were committed on 10 March 1994. Section 14 of the Anti-Carnapping Act was amended by Section 20 of R.A. No. 7659 and now imposes the penalty of reclusion perpetua to death 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. This Section, as amended, reads in full as follows: 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 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. (Underscoring supplied for emphasis). In the original Section 14 of R.A. No. 6539, the last clause read as follows: and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped vehicle is killed in the commission of the carnapping. (stress supplied). Three amendments have thus been made, viz: (1) the change of the penalty of 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. The latter makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of Article 294 of the Revised Penal Code on robbery with violence against or intimidation of persons. As such, the killing (or the rape) merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form. In short, considering the phraseology of the amended Section 14, [51] the carnapping and the killing (or the rape) may be considered as a single or indivisible crime or a special complex crime which, however, is not covered by Article 48 of the Revised Penal Code. Since Section 14 of R.A. No. 6539 uses the words IS KILLED, no distinction must be made between homicide and murder. Whether it is one or the other which is committed "in the course of carnapping or on the occasion thereof makes no difference insofar as the penalty is concerned. It follows then that the killing of the driver, Teofilo Landingin -- whether it be homicide or murder -- cannot be treated as a separate offense, but should only be considered to qualify the crime of carnapping. Nonetheless, although there could only be one single offense of qualified carnapping or carnapping in an aggravated form, the prosecution had still to prove the essential requisites of the homicide or murder of Landingin and that of carnapping. This should have been another reason for the consolidation of the carnapping case in the CASTILLO court with the cases before the LARON court. But do the words "IS KILLED" in the last clause of Section 14 of R.A. No. 6539, as amended, include the crime of frustrated murder or homicide? Put a little differently, does murder or homicide in its frustrated stage also qualify carnapping if it is committed in the course of the commission of the carnapping or on the occasion thereof? The answer must be in the negative in light of the use in said Section 14 of the words IS KILLED. The unmistakable import thereof is that it refers only to the consummated felony of either murder or homicide. If attempted or frustrated murder or homicide is committed in the course of the commission of the carnapping or on the occasion thereof, then it must be deemed to fall under the clause (of Section 14) when the carnapping is committed by means of violence against or intimidation of any person. We shall now take up the issue of the culpability of the appellants. The evidence adduced by the prosecution has established beyond reasonable doubt the carnapping of Teofilo Landingin's passenger jeepney, which is a motor vehicle under the definition in Section 2 of R.A. No. 6539.[52] The passenger jeepney was taken, with intent of gain, from Landingin by means of violence against him which caused his death and against a passenger, Virgilio Catugas, who suffered physical injuries.

But, has the prosecution established with moral certainty the guilt of the appellants? The LARON and the CASTILLO courts held that it did. Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved.[53] To overcome the presumption, nothing but proof beyond reasonable doubt must be established by the prosecution.[54] Save in certain circumstances as where, for instance, the accused admits the commission of the acts alleged to constitute a crime but interposes justifying circumstances, the burden is never shifted to the accused or diminished by the weakness of his defense. Indeed, unless the prosecution successfully discharges that burden, the accused need not even offer evidence in his behalf. [55] In our jurisdiction accusation is not synonymous with guilt. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accuseds innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged.[56] If the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed; it is, even more, the court's constitutional duty to acquit him.[57] After a painstaking review of the records and the transcripts of the stenographic notes of the testimonies of the witnesses in the cases before the LARON court and the CASTILLO court, we are not convinced with moral certainty that the appellants committed the crimes charged. Reasonable doubt burdens our conscience; our minds cannot rest easy on a verdict of conviction. The prosecution had nine suspects in these cases: the four appellants and the five others, namely, Romulo Calimquim, Alex Mamaril, a certain Dennis, a certain Mondragon, and another described as John Doe. All nine were forthwith charged with the crimes of murder, frustrated murder, and carnapping in Criminal Cases Nos. 3310,[58] 3313,[59] 3311,[60] respectively, of the Municipal Trial Court of Sta. Barbara, Pangasinan, and then in the informations in Criminal Cases Nos. 94-00617-D,[61] and 9400619-D[62] of the LARON court and Criminal Case No. 94-00620-D[63] of the CASTILLO court, respectively. The theory of the appellants is that they were not members of the group of Romulo Calimquim. The prosecution has no proof to prove otherwise; but the LARON and the CASTILLO courts, through inferences from certain facts, concluded that the appellants were. The conclusion is rather tenuous. While the rigorous cross-examination of the appellants in all these cases has established close relationship among the appellants by reason of their residence and work, (Benito, as sand-and-gravel truck driver and Mejia, Fabito, and Paraan as his keepers), it miserably failed to establish any relationship between them and the five others headed by Calimquim. What then looms large in our minds is that the appellants and the five others happened to be passengers of Landingins jeepney by accident, not by design. If the appellants were with the five others until Sual, Pangasinan, it was because they were intimidated and made to lie down on their bellies inside the jeepney. Another circumstance further proves that the appellants did not belong to the group of Calimquim. Upon arrival in the mountains of Sual, they fled from the Calimquim group when the first opportunity to do so came. We find to be absolutely without basis the statement of the CASTILLO court that the appellants abandoned Landingins jeepney in Sitio Nipa, Baquioen, Sual, Pangasinan, upon seeing the arrival of concerned citizens and members of the Sual Police Station; the responding peace officers effected the recovery of the subject jeepney sans the accused/culprits. No prosecution witness so testified. In the CASTILLO court, no policeman was presented as witness for the prosecution. The evidence presented by both the prosecution and the defense reveal that after appellants Benito and Mejia were picked up by

Policeman Gulen on the latters suspicion that they were members of an akyat-bahay gang, they voluntarily informed the police authorities of the Sual Police Station of what had happened. It was this information that brought the policemen to where the subject jeepney was located. Benito even accompanied the policemen. This resulted in the recovery of the jeepney by the policemen. Appellant Paraan also presented himself later to the Police Station of Sta. Barbara. Appellant Fabito, although apprehended by concerned citizens of the place to where he had fled, voluntarily reported what he knew to the police authorities of Sual and Sta. Barbara. Unfortunately, the CASTILLO court relied heavily on the entries in the police blotters of the police stations of Sual and Sta. Barbara. The silence of the entries on what the appellants had declared in court is not conclusive evidence that they did not report the incident to the police authorities. They had no participation in the preparation of the entries. Entries in the police blotters should not be given undue significance or probative value, for they are normally incomplete and inaccurate sometimes from either partial suggestion of for want of suggestion or inquiries.[64] The entries in question are sadly wanting in material particulars. At the very most, they only recorded the impression that the appellants were suspects. As to the alleged participation of the appellants in the commission of the crimes, the prosecution had to rely solely on the testimony of Virgilio Catugas. The totality of his testimony in the cases before the LARON court leaves much to be desired. The prosecutor who conducted the direct examination was unable to propound sensible questions to elicit clear answers bound to reconstruct faithfully the events surrounding the commission of the alleged crimes. This deficiency thus tempted the trial judge to ask more questions. Despite the latters participation, the testimony of Catugas fails to convince us that the appellants indeed participated in the commission of the crimes. On cross-examination in the LARON court, Catugas categorically admitted that he did not know the names of the appellants and that he could recognize only three of the nine accused. Thus: ATTY. TAMINAYA: Q Now, in paragraph 8 of your statement, you said and you mentioned the names of the person and I will now read: Q A How about the true names of the suspect, do you know them? In fact I do not know, however, based on the police investigation of Sta. Barbara PNP, they were, Gregorio Mejia, Edwin Benito, Joseph Fabito, Pedro Paraan, Mok Calimquim, alyas Dennis, Alex Mamaril, Dennis Abrigo alyas Mondragon and one unidentified person.

can you tell this Court why these persons were written in your statement? A Q A Q A Because of the police investigation. So, were it not of the police and the pictures, you were not able to identify the accused, is that correct? I can recognize the others, sir. How many of the nine (9) can you recognize? Three (3) of them, sir.

COURT: Q A What you do mean when you said that that you can recognize three (3) of them? I can remember those persons who sat near me.

Q A Q A Q A

Who of the four (4) accused who sitted [sic] near you? The one wearing red T-shirt, the second to the last of the four accused. So, how were you able to identify these [sic] person who is [sic] wearing in [sic] red T-shirt? I saw his face, sir. How were you able to recognize the last person (referring to Edwin Benito)? He was besides [sic] the driver, Sir.
[65]

Me and the driver, sir.

PROS. MARATA: Q A How many times were you stabbed by the nine persons, four of whom were inside the courtroom? From the scar left of my body, there are 22 stabbed wounds, sir.[66]

Further indicating the uncertainty of his identification, he made the following admissions on cross-examination: Q A Q A Q A Q A Q A Q A Q A Now, you said you recognized the persons who sat besides [sic] the driver, is it not? Yes, sir. Please point to him? He was wearing a dark color. Was it a T-shirt or a polo shirt? I cannot tell, sir. How about the person sitting in front of you whom you pointed to this person wearing in red T-shirt? I can no longer remember, sir. How about the person next to the one with red t-shirt, do you remember his shirt? I dont know, sir. How about Gregorio Mejia, do you remember his clothes? I cannot remember, sir. You cant remember also whether one of these accused was wearing a hat at that time? I cannot remember, sir.

Yet, no further questions were asked for him to convincingly show that the appellants inflicted any of the stab wounds on his body. Further compounding the uncertainty and unreliability of Catugas testimony, he candidly admitted on cross-examination that only one person stabbed him. Thus: ATTY. TAMINAYA: Q A Q A Q A him: COURT: Q A Q A How many stab wounds did you sustain? More than twenty (20) stab wounds, sir. A while ago you mentioned there were two (2) initial stab blows with respect to the other stab blow who delivered this stab blow? His companions and also Gregorio Mejia, sir. How many times were you stabbed by them? Twice, sir. And you cannot recognize the person who stabbed your? I can identify him, sir. How many persons stabbed you then? Only one (1) person, sir.[67]

Upon further questioning by the court, Catugas declared that six of the nine stabbed

COURT: Proceed. ATTY. TAMINAYA: Q When you said his companions and Gregorio Mejia are you referring to the five (5) other persons as the companions of Gregorio Mejia who participated in stabbing you? I think it is about six (6) of them who stabbed me, sir.[68]

In the case before the CASTILLO court, he declared that he was stabbed by the nine persons. Thus: COURT: Q A Q A Q Who were involved in stabbing? All of them, sir. Who was the assailant and who was stabbed? The 9 persons, sir. When you said 9 persons, they were the 9 persons who participated in the stabbing incident and who were the victims?

He could not remember anymore the person who inflicted the last stab wound, and then declined to point to anyone of the herein four appellants as the person who did it. Thus: COURT: Q When they stopped stabbing you they did not stab you anymore?

A Q A Q

They still stabbed me on my right upper arm, sir. (Witness showing his scar near the shoulder.) You said you were stabbed on your right shoulder, who stabbed you among these nine (9) persons? I could not remember anymore, sir. When you said you cannot remember, you cannot tell this Court whether it was one among the four (4) accused in this case who stabbed you on your right upper arm? I could not point the person responsible in stabbing my shoulder because that is the last stab wound, sir.[69]

COURT: Proceed. ATTY. TAMINAYA: Q A And the parents of Edwin Benito cannot pay that P80,000.00 because they are poor? They will not pay that amount on that date, we have agreed of another date for them to pay, sir.

COURT: Q A Q A Did the parents of Edwin Benito made a counter offer? That is already their counter proposal, sir. What you want to tell the Honorable Court is that you agreed to pay you P80,000.00 but he cannot pay you at that very moment? Yes, sir.

It would thus be sheer speculation and conjecture to conclude from Catugas testimony in the CASTILLO court that the appellants had inflicted any of the stab wounds on Catugas. Moreover, on question by the trial judge in the CASTILLO court, Catugas categorically admitted that none of the appellants participated in the stabbing of Landingin. Thus: COURT: xxx Q These two persons who participated in stabbing Teofilo Landingin, can you inform the Court if the four (4) accused now or these two persons are among the four (4) accused now? They are not here, sir.[70]

COURT: Proceed. ATTY. TAMINAYA: Q Did you agree for the amount of P80,000.00?

Finally, Catugas was not entirely free from any ulterior motive in implicating the appellants. He admitted that he demanded P80,000 from the parents of the appellants, but before they could give the money on the agreed date, he testified against the appellants in the LARON court. The following exchanges between him and counsel for the defense before the CASTILLO court are revealing: ATTY. TAMINAYA: Q A Q A Q A After you were released from the hospital, were you able to talk with the father of Edwin Benito? Yes, sir. And you told them about your expenses in the hospital, is that correct? Yes, sir. And you demanded from them to pay P40,000.00 is that correct? I was asking P80,000.00, sir.

COURT: That is the settlement money. ATTY. TAMINAYA: Q A So, it is clear that if only they have given P80,000.00, you should not have testified in this case? PROSECUTOR MARATA: Improper, your honor. ATTY. TAMINAYA: As follow-up question, your Honor. COURT: Sustained. Hypothetical. ATTY. TAMINAYA: Q A You said that there was the agreed date, what happened on the agreed date? The date has not yet arrived but I have already testified, sir.

COURT: Q A Q A Why were you asking the amount of P80,000.00 then? Because he pleaded to me, sir. What you are trying to convey to the Court is that you are settling the case with Edwin Benito the amount of P80,000.00? Yes, sir.

COURT: Q When you said you have already testified, you are referring to your testimony in RTC Branch 44?

Yes, sir.[71]

A Q A

No sir, not even a single centavo. Why? We cannot pay because even payment for attorneys fees, we cannot afford.[73]

In the LARON court, efforts were made by the prosecution to cushion the impact of Catugas demand for payment of P80,000 in consideration of his exculpatory testimony. It wanted to prove that the parents of the appellants were in fact the ones who proposed. But the testimony of Conrado Benito, which the prosecution failed to satisfactorily rebut, is that the parents went to see him to verify whether their children had indeed committed the crimes; but Catugas replied that since the appellants were the ones apprehended, he would just pinpoint them so that he could recover what he had spent. He then demanded P80,000, which he equally apportioned among the parents of the four appellants. Conrado Benito testified as follows: Q A What did you tell him? I told him that our children telling us that they did not commit any wrong and I told them to tell the truth and we are not consenting them to whatever they have done if they have done something wrong. What was the answer of Virgilio Catugas? He said, he suffered several wounds and that he spent so much for his hospitalization, and he said also that they were the persons who were apprehended and so, I will just tell a lie for the same because how could I collect for the amount I spent if I will not tell a lie?

The LARON court gave credence to the version of the prosecution and even took the incident as offer of compromise, which may be considered an implied admission of guilt. Said court misapplied Section 27 of Rule 130 of the Rules of Court. [74] There is no evidence whatsoever that any of the appellants authorized his parents to approach Catugas or knew the matter of payment of P80,000. Moreover, if one were to believe the explanation of Catugas that the amount of P80,000 represented the expenses he incurred for his hospitalization and medical bills, then the offer to reimburse it is not admissible in evidence as proof of criminal liability pursuant to the last paragraph of Section 27 of Rule 130. On the whole then we entertain, unavoidably, serious doubt on the participation of the appellants in the commission of the crimes charged. WHEREFORE, the challenged decisions in Criminal Case No. 94-00617-D (for Murder) and Criminal Case No. 94-00619-D (for Frustrated Murder) of Branch 44 and in Criminal Case No. 94-00620-D (violation of Anti-Carnapping Act of 1972) of Branch 43 of the Regional Trial Court of Dagupan City are REVERSED. Accused-appellants Gregorio Mejia, Edwin Benito, Pedro Paraan, and Joseph Fabito are ACQUITTED on the ground that their guilt therefor has not been proved beyond reasonable doubt or with moral certainty. Their immediate release from detention is hereby ordered, unless other lawful and valid grounds for their further detention exist. [G.R. No. 105944. February 9, 1996] SPOUSES ROMULO AND SALLY EDUARTE, petitioners, vs. THE HONORABLE COURT OF APPEALS and PEDRO CALAPINE (substituted by ALEXANDER CALAPINE and ARTEMIS CALAPINE, respondents. DECISION FRANCISCO, J.: A donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it.[1] On the part of the donor, it is an exercise of ones generosity. However, on several occasions, instead of being accorded recognition and appreciation for this act of beneficence, the donor ends up as a victim of greed and ingratitude. This was the fate that befell Pedro Calapine (herein original plaintiff) constraining him to cause the revocation of the donation that he made to his niece in 1984. The instant petition for certiorari is interposed by the spouses Romulo and Sally Eduarte, assailing the decision of the Court of Appeals in CA-G.R. CV No. 29175 which affirmed the revocation of the donation made by Pedro Calapine to his niece, Helen Doria, and at the same time declared petitioners as purchasers in bad faith of the property donated. As set out in the appealed decision, the undisputed facts are as follows: Pedro Calapine was the registered owner of a parcel of land located in San Cristobal, San Pablo City, with an area of 12,199 square meters, as evidenced by Original Certificate of Title No. P-2129 (Exhibits A and 1). On April 26, 1984, he executed a deed entitled Pagbibigay-Pala (Donacion Inter-Vivos) ceding one-half portion thereof to his niece Helen S. Doria (Exhibit B). On July 26, 1984, another deed identically entitled was purportedly executed by Pedro Calapine ceding unto Helen S. Doria the whole of the parcel of land covered by OCT No. P-2129 (Exhibits C and D), on

Q A

COURT: Q A You consider Virgilio Catugas as a liar and you are not a liar? Yes, sir.

ATTY. TAMINAYA: Q A Q A Can you tell this Court what did you tell him about that expenses? I said, then we can at least help you, because he is saying that he suffered several wounds. How much did Virgilio Catugas tell you? The last time that we talked, he ask[ed] us to give P20,000.00 each.

COURT: Q A How many times did he tell you? For 5 to 6 times because he told us to return to him.[72]

But the parents could not deliver the P20,000 each was to pay, for they could not afford it. Conrado so declared, thus: ATTY. TAMINAYA: Q A Q When Virgilio Catugas told you to give P20,000.00, can you tell this court if he made mention to the wife of Teofilo Landingin? Because he is collecting from us P20,000.00, he told us that we would not tell the same to Mrs. Landingin. Were you able to give that P20,000.00?

the basis of which said original certificate was cancelled and in lieu thereof Transfer Certificate of Title No. T-23205 was issued in her name (Exhibits G and 2). On February 26, 1986, Helen S. Doria donated a portion of 157 square meters of the parcel of land covered by TCT No. T-23205 to the Calauan Christian Reformed Church, Inc. (Exhibit H), on the basis of which said transfer certificate of title was cancelled and TCT No. T-24444 was issued in its name covering 157 square meters (Exhibit 2-A) and TCT No. T-24445, in the name of Helen S. Doria covering the remaining portion of 12,042 square meters (Exhibit 3). On March 25, 1988, Helen S. Doria sold, transferred and conveyed unto the spouses Romulo and Sally Eduarte the parcel of land covered by TCT No. T-24445, save the portion of 700 square meters on which the vendors house had been erected (Exhibits I and 3 -F), on the basis of which TCT No. 24445 was cancelled and in lieu thereof TCT No. T-27434, issued in the name of the vendees (Exhibit 4). Claiming that his signature to the deed of donation (Exhibits C and D) was a forgery and that, she was unworthy of his liberality, Pedro Calapine brought suit against Helen S. Doria, the Calauan Christian Reformed Church, Inc. and the spouses Romulo and Sally Eduarte to revoke the donation made in favor of Helen S. Doria (Exhibit B), to declare null and void the deeds of donation and sale that she had executed in favor of the Calauan Christian Reformed Church, Inc. and the spouses Romulo and Sally Eduarte (Exhibits H, I and 3-F) and to cancel TCT Nos. T-24444, 24445 and T-27434. Answering the complaint, the defendants spouses denied knowledge of the first deed of donation and alleged that after a part of the property was donated to the defendant Calauan Christian Reformed Church, Inc., the remaining portion thereof was sold to them by the defendant Helen S. Doria; and that the plaintiffs purported signature in the second deed of donation was his own, hence genuine. The y prayed that the complaint against them be dismissed; that upon their counterclaim, the plaintiff be ordered to pay them moral and exemplary damages and attorneys fees; and that upon their cross -claim the defendant Helen S. Doria be ordered to reimburse them the purchase price of P110,000 and to pay them moral and exemplary damages and attorneys fees (pp. 23-31, rec.). The defendant Calauan Christian Reformed Church, Inc. manifested in its answer the willingness to reconvey to the plaintiff that part of the property donated to it by Helen S. Doria (pp. 36-38, rec.). And having executed the corresponding deed of reconveyance, the case as against it was dismissed(pp. 8183; 84, rec.). The defendants Helen S. Doria and the City Assessor and the Registrar o f Deeds of San Pablo City did not file answers to the plaintiffs complaint. After the plaintiffs death on August 27, 1989, on motion, he was substituted by his nephews Alexander and Artemis Calapine upon order of the Court (pp. 147-152; 250, rec.). After trial, the Regional Trial Court, Fourth Judicial Region, Branch 30, San Pablo City rendered judgment, the dispositive part of which provides: WHEREFORE, premises considered, judgment is hereby rendered by the Court in the instant case in favor of plaintiff and against defendant Eduartes to wit: 1. DECLARING as it is hereby declared, the revocation of the Deed of Donation dated April 26,1984;

2. ANNULLING, voiding, setting aside and declaring of no force and effect the Deed of Donation dated July 26, 1984, the deed of absolute sale executed on March 25, 1988 by and between spouses Eduartes and Helen Doria, and the Transfer Certificate of Title No-T-27434 issued under the name of spouses Romulo and Sally Eduarte; 3. ORDERING the office of the Register of Deeds, San Pablo City, to cancel TCT No. T-27434 or any other adverse title emanating from OCT No. P-2129 and in lieu thereof, to issue a new transfer certificate of title covering the subject property under the names of the substitute-plaintiffs Alexander and Artemis both surnamed Calapine, after payment of the corresponding fees and taxes therefor; and 4. ORDERING defendant Helen Doria to pay substitute-plaintiffs the sum of P20,000.00 as and for attorneys fees. Judgment on the cross-claim of defendant Eduartes against Helen Doria is further rendered by ordering the latter to pay the former the sum of P110,000.00 with legal interest thereon starting from March 25, 1988 until full payment, and the further sum of P20,000.00 as and for attorneys fees. The counterclaim of defendant Eduartes against plaintiff is hereby dismissed for lack of merit. Costs against defendant Helen Doria in both the complaint and the cross-claim (pp. 11-12, decision, pp. 264-265, rec.). Only the defendants Eduarte spouses took an appeal (p. 266, rec.), claiming that the trial court erred 1. In annulling, voiding, setting aside, and declaring of no force and effect (a) the deed of donation (Exhibits C and 1-A), dated July 26,1984; (b) the deed of absolute sale (Exhibits 1 and 3-E) executed on March 25, 1988 by and between Spouses Eduartes and Helen Doria; (c) TCT No. T-27434 (Exhibit 4) issued in the name of spouses Romulo Eduarte and Sally Eduarte; and in revoking the deed of donation (Exhibit B) dated April 26,1984; 2. In declaring the appellants Eduartes buyers in bad faith; 3. In not finding the plaintiffs guilty of estoppel by silence and/or guilty of suppression of evidence instead of finding the appellants Eduartes guilty of suppression of evidence; and 4. In finding that the signature of Pedro Calapine in the deed of donation (Exhibits C and 1-A) dated July 26,1984 a forgery based on the opposite findings of the handwriting experts presented by each party and in the absence of the testimony of Pedro Calapine who was then still alive (pp. 1-2, appellants brief.)[2] In its decision dated April 22, 1992,[3] respondent Court of Appeals dismissed petitioners appeal and affirmed the decision of the trial court. Respondent court was in complete accord with the trial court in giving more credence to the testimony of private respondents expert witness, NBJ document examiner Bienvenido Albacea, who found Pedro Calapines signature in the second deed of donation to be a forgery. It also ruled that by falsifying Pedro Calapi nes

signature, Helen Doria committed an act of ingratitude which is a valid ground for revocation of the donation made in her favor in accordance with Article 765 of the Civil Code. Furthermore, respondent court upheld the trial courts finding that petit ioners are not buyers in good faith of the donated property as they failed to exercise due diligence in verifying the true ownership of the property despite the existence of circumstances that should have aroused their suspicions. Petitioners are now before us taking exception to the foregoing findings of respondent Court of Appeals and contending that the same are not in accord with the law and evidence on record. Anent the revocation of the first deed of donation, petitioners submit that paragraph (1) of Article 765 of the Civil Code does not apply in this case because the acts of ingratitude referred to thereih pertain to offenses committed by the donee against the person or property of the donor. Petitioners argue that as the offense imputed to herein donee Helen Doria falsification of a public document - is neither a crime against the person nor property of the donor but is a crime against public interest under the Revised Penal Code, the same is not a ground for revocation. In support of this contention, petitioners cite the following portions found in Tolentinos Commentaries and Jurisprudence on the Civil Code: Offense against Donor - x x x. The crimes against the person of the donor would include not only homicide and physical injuries, but also illegal detention, threats and coercion; and those against honor include offenses against chastity and those against the property, include robbery, theft, usurpation, swindling, arson, damages, etc. (5 Manresa 175-176).[4] This assertion, however, deserves scant consideration. The full text of the very same commentary cited by petitioners belies their claim that falsification of the deed of donation is not an act of ingratitude, to wit: Offense Against Donor. All crimes which offend the donor show ingratitude and are causes for revocation. There is no doubt, therefore, that the donee who commits adultery with the wife of the donor, gives cause for revocation by reason of ingratitude. The crimes against the person of the donor would include not only homicide and physical injuries, but also illegal detention, threats, and coercion; those against honor include offenses against chastity; and those against the property, include robbery, theft, usurpation, swindling, arson, damages, etc. [Manresa 175-176].[5] (Italics supplied). Obviously, the first sentence was deleted by petitioners because it totally controverts their contention. As noted in the aforecited opinion all crimes which offend the donor show ingratitude and are causes for revocation. Petitioners attempt to categorize the offenses according to their classification under the Revised Penal Code is therefore unwarranted considering that illegal detention, threats and coercion are considered as crimes against the person of the donor despite the fact that they are classified as crimes against personal liberty and security under the Revised Penal Code.[6] Petitioners also impute grave error to respondent Court of Appeals in finding that the second deed of donation dated July 26, 1984 was falsified. Petitioners deplore the fact that more credence was given to the testimony of the NBI handwriting expert who found Pedro Calapines signature in the second deed of donation to be a forgery despite the existen ce of controverting testimony by PC-INP Crime Laboratory (PCCL) Chief Document Examiner which petitioners adduced as evidence on their part. We are not persuaded. Respondent Court of Appeals and the trial court cannot be faulted for giving more weight and credence to the testimony of the NBI handwriting expert considering that the examination of the said witness proved to be complete, thorough and scientific.

In gauging the relative weight to be given to the opinion of handwriting experts, we adhere to the following standards: We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. The test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent course, and is, therefore itself permanent.[7] Confronted with contradicting testimonies from two handwriting experts, the trial court and respondent Court of Appeals were convinced by the opinion of the NB! handwriting expert as it was more exhaustive, in contrast with the testimony of petitioners witness from the PCCL which was discarded on account of the following flaws: The Court is not convinced with Cruzs explanations. Apart from the visual inconsistencies, i.e., the strokes with which some letters were made, the variety in the sizes of the letters, the depth, the difference in the slant which the Court itself observed in its own examination of both the questioned signatures and those standard specimen signatures, there is evidence showing that Cruz did not make a thorough examination of all the signatures involved in this particular issue. Thus even in the report submitted by the PCCL it was admitted that they omitted or overlooked the examination of at least three (3) standard specimen signatures of Pedro Calapine which were previously subject of the NBI examination marked as Exhibits S-9, S-10 and S-il. When questioned regarding this oversight, Cruz testified that in his opinion, the inclusion or non-inclusion of said exhibits in their examination will not affect the same and they would have arrived at the same conclusion anyway. Again, when asked why they did not bother to have the original copies of the documents being questioned (Exhs. Q-1 through Q-3) for their examination, Cruz replied that they are using a special film so it will not matter whether the documents being examined are the original or a mere photocopy (TSN 8, 10, 12 and 26, Hearing of Nov. 23, 1989). The Court will not attempt to make its own conclusion or resolution on such a technical i ssue as the matter at hand in the light of the cavalier attitude of Cruz. In fine, between the examinations made by the two witnesses, that of Albaceas proved to be complete, thorough and scientific and is worthy of credence and belief.[8] The afore-quoted findings confirm beyond doubt the failure of petitioners expert witness to satisfy the above-mentioned criteria for evaluating the opinion of handwriting experts. At the same time, petitioners witness failed to rebut the convincing testimony of the NB! handwriting expert presented by private respondents. We therefore find no reason to deviate from the assailed conclusions as the same are amply supported by the evidence on record. Finally, proceeding to the crucial issue that directly affects herein petitioners, it is reiterated that petitioners are buyers in good faith of the donated property, and therefore, it was grave error to annul and set aside the deed of sale executed between petitioners and donee Helen Doria. In adjudging petitioners as buyers in bad faith, respondent Court of Appeals affirmed the trial courts finding that the attendant circumstances, that is, the presence of other occupants as well as houses built of strong materials and fruit bearing trees in the subject land, should have aroused the suspicion of petitioners and impelled them to exercise due diligence in verifying the true ownership of the property being sold. Petitioners dispute the tower courts conclusion and argue that although there were other occupants in the subject property, no adverse claim was made by the latter as they were mere tenants therein, thus, petitioners

were not obliged to make any further inquiry because the property being sold was covered by a certificate of title under Helen Dorias name. We agree with petitioners. The rule is well-settled that mere possession cannot defeat the title of a holder of a registered torrens title to real property. [9] Moreover, reliance on the doctrine that a forged deed can legally be the root of a valid title is squarely in point in this case: Although generally a forged or fraudulent deed is a nullity and conveys no title, however there are instances when such a fraudulent document may become the root of a valid title. One such instance is where the certificate of title was already transferred from the name of the true owner to the forger, and while it remained that way, the land was subsequently sold to an innocent purchaser. For then, the vendee had the right to rely upon what appeared in the certificate. Where there was nothing in the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not required to explore further than what the Torrens Title upon its face indicates in quest for any hidden defect or inchoate right that may subsequently defeat his right thereto. If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which the Torrens System seeks to insure would entirely be futile and nugatory. [10] When herein petitioners purchased the subject property from Helen Doria, the same was already covered by TCT No. T-23205 under the latters name. And although Helen Dorias title was fraudulently secured, such fact cannot prejudice the rights of herein petitioners absent any showing that they had any knowledge or participation in such irregularity. Thus, they cannot be obliged to look beyond the certificate of title which appeared to be valid on its face and sans any annotation or notice of private respondents adverse claim. Contrary therefore to the conclusion of respondent Court, petitioners are purchasers in good faith and for value as they bought the disputed property without notice that some other person has a right or interest in such property, and paid a full price for the same at the time of the purchase or before they had notice of the claim or interest of some other person in the property. [11] Respondent Court therefore committed a reversible error when it affirmed the ruling of the trial court annulling and setting aside the deed of absolute sale dated March 25, 1988 between petitioners and Helen Doria, as well as the Transfer Certificate of Title No. T-27434 issued under petitioners name, the established rule being that the rights of an innocent purchaser for value must be respected and protected notwithstanding the fraud employed by the seller in securing his title.[12] !n this regard, it has been held that the proper recourse of the true owner of the property who was prejudiced and fraudulently dispossessed of the same is to bring an action for damages against those who caused or employed the fraud, and if the latter are insolvent, an action against the Treasurer of the Philippines may be filed for recovery of damages against the Assurance Fund.[13] Conformably with the foregoing, having established beyond doubt that Helen Doria fraudulently secured her title over the disputed property which she subsequently sold to petitioners, Helen Doria should instead be adjudged liable to private respondents, and not to petitioners as declared by the trial court and respondent Court of Appeals, for the resulting damages to the true owner and original plaintiff, Pedro Calapine. ACCORDINGLY, the petition is GRANTED and the appealed decision is hereby MODIF!ED. The portions of the decision of the Regional Trial Court of San Pablo City, Branch 30, as affirmed by the Court of Appeals in CA-G.R. CV No. 29175 which ordered the following: xxx xxx xxx;

2. ANNULLING, voiding, setting aside and declaring of no force and effect x x x , the deed of absolute sale executed on March 25, 1988 by and between spouses Eduartes and Helen Doria, and the Transfer Certificate of Title No. T-27434 issued under the name of spouses Romulo and Sally Eduarte; 3. ORDERING the office of the Register of Deeds, San Pablo City, to cancel TCT No. T-27434 or any other adverse title emanating from OCT No. P-2129 and in lieu thereof, to issue a new transfer certificate of title covering the subject property under the names of the substitute-plaintiffs Alexander and Artemi s both surnamed Calapine, after payment of the corresponding fees and taxes therefor: and 4 xxx . xxx xxx

Judgnient on the cross-claim of defendant Eduartes against Helen Doria is further rendered by ordering the latter to pay the former the sum of P110,000.00 with legal interest thereon starting from March 25, 1988 until full payment, x x x. are hereby REVERSED and SET ASIDE. Instead, Helen Doria is hereby ordered to pay herein private respondents the sum of P110,000.00 with legal interest counted from March 25, 1988 until full payment, as damages for the resulting loss to original plaintiff Pedro Calapine. In all other respects, the appealed decision is hereby affirmed.