SECOND DIVISION

[G.R. No. 128538. February 28, 2001]

SCC CHEMICALS CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS, STATE INVESTMENT HOUSE, INC., DANILO ARRIETA and LEOPOLDO HALILI, respondents. RESOLUTION
QUISUMBING, J.:

Before us is a petition for review, pursuant to Rule 45 of the Rules of Court, of the Decision of the Court of Appeals dated in November 12, 1996 in CA-G.R. CV No. 45742 entitled State Investment House, Inc., v. Danilo Arrieta, et al., and SCC Chemical Corporation. The questioned decision affirmed in toto the decision of the Regional Trial Court of Manila, Branch 33, dated March 22, 1993, in Civil Case No. 84-25881, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the latter to pay jointly and severally the plaintiff the following: a) To pay plaintiff State Investment House, Inc., the sum of P150,483.16 with interest thereon at 30% per annum reckond (sic) from April, 1984 until the whole amount is fully paid; b) To pay plaintiff an amount equivalent to 25% of the total amount due and demandable as attorneys fees and to pay the cost(s) of suit. SO ORDERED.[1]
Equally challenged in this petition is the Resolution of the appellate court dated February 27, 1997, denying SCC Chemicals Corporations motion for reconsideration. The background of this case, as culled from the decision of the Court of Appeals, is as follows: On December 13, 1983, SCC Chemicals Corporation (SCC for brevity) through its chairman, private respondent Danilo Arrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, Danilo Arrieta and private respondent Leopoldo Halili executed a Comprehensive Surety Agreement binding themselves jointly and severally to pay the obligation on the maturity date. SCC failed to pay the loan when it matured. SIHI then sent

demand letters to SCC, Arrieta and Halili, but notwithstanding receipt thereof, no payment was made. On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of money with a prayer for preliminary attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila. In its answer, SCC asserted SIHIs lack of cause of action. Petitioner contended that the promissory note upon which SIHI anchored its cause of action was null, void, and of no binding effect for lack or failure of consideration. The case was then set for pre-trial. The parties were allowed to meet out-of-court in an effort to settle the dispute amicably. No settlement was reached, but the following stipulation of facts was agreed upon:

1. Parties agree that this Court has jurisdiction over the plaintiff and the defendant and that it has jurisdiction to try and decide this case on its merits and that plaintiff and the defendant have each the capacity to sue and to be sued in this present action; 2. Parties agree that plaintiff sent a demand letter to the defendant SCC Chemical Corporation dated April 4, 1984 together with a statement of account of even date which were both received by the herein defendant; and 3. Parties finally agree that the plaintiff and the defendant SCC Chemical Corporation the latter acting through defendants Danilo E. Arrieta and Pablito Bermundo executed a promissory note last December 13, 1983 for the amount of P129,824.48 with maturity date on January 12, 1984.[2]
The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the plaintiff and to what extent was the liability. SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed several times due to one reason or another at the instance of either party. The case was calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the case was deemed submitted for decision. On March 22, 1993, the lower court promulgated its decision in favor of SIHI. Aggrieved by the verdict, SCC elevated the case to the Court of Appeals where it was docketed as CA-G.R. CV No. 45742. On appeal, SCC contended that SIHI had failed to show, by a preponderance of evidence, that the latter had a case against it. SCC argued that the lone witness presented by SIHI to prove its claim was insufficient as the competency of the witness was not established and there was no showing that he had personal knowledge of the transaction. SCC further maintained that no proof was shown of the genuineness of the signatures in the documentary exhibits presented as

evidence and that these signatures were neither marked nor offered in evidence by SIHI. Finally, SCC pointed out that the original copies of the documents were not presented in court. On November 12, 1996, the appellate court affirmed in toto the judgment appealed from. On December 11, 1996 SCC filed its motion for reconsideration, which the Court of Appeals denied in its resolution dated February 27, 1997. Hence, petitioners recourse to this Court relying on the following assignments of error:
I

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PRIVATE RESPONDENT PROVED ITS CAUSE OF ACTION AND OVERCAME ITS BURDEN OF PROOF.
II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AWARDING ATTORNEYS FEES TO THE PRIVATE RESPONDENT.
We find the pertinent issues submitted for resolution to be:
(1) Whether or not the Court of Appeals made an error of law in holding that private respondent SIHI had proved its cause of action by preponderant evidence; and (2) Whether or not the Court of Appeals erred in upholding the award of attorneys fees to SIHI.

Anent the first issue, petitioner contends that SIHI introduced documentary evidence through the testimony of a witness whose competence was not established and whose personal knowledge of the truthfulness of the facts testified to was not demonstrated. It argues that the same was in violation of Sections 36[3] and 48,[4]Rule 130 of the Rules of Court and it was manifest error for the Court of Appeals to have ruled otherwise. In addition, SCC points out that the sole witness of SIHI did not profess to have seen the document presented in evidence executed or written by SCC. Thus, no proof of its genuineness was adduced. SIHI thus ran afoul of Section 2,[5] Rule 132 of the Rules of Court, which requires proof of due execution and authenticity of private documents before the same can be received as evidence. Petitioner likewise submits that none of the signatures affixed in the documentary evidence presented by SIHI were offered in evidence. It vehemently argues that such was in violation of the requirement of Section 34,[6] Rule 132 of the Rules of Court. It was thus an error of law on the part of the appellate court to consider the same. Finally, petitioner posits that the non-production of the originals of the documents presented in evidence allows the presumption of suppression of evidence provided for in Section 3 (e),[7] Rule 131 of the Rules of Court, to come into play. Petitioners arguments lack merit; they fail to persuade us. We note that the Court of Appeals found that SCC failed to appear several times on scheduled hearing dates despite due notice to it and counsel. On all those scheduled hearing dates, petitioner was supposed to cross-examine the lone witness offered by SIHI to prove its case. Petitioner now charges the appellate court with committing an error of law when it failed to

disallow the admission in evidence of said testimony pursuant to the hearsay rule contained in Section 36, Rule 130 of the Rules of Court. Rule 130, Section 36 reads:

SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in these rules.
Petitioners reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay evidence is excluded and carries no probative value.[8]However, the rule does admit of an exception. Where a party failed to object to hearsay evidence, then the same is admissible. [9] The rationale for this exception is to be found in the right of a litigant to cross-examine. It is settled that it is the opportunity to cross-examine which negates the claim that the matters testified to by a witness are hearsay.[10] However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial court to cross-examine the other partys witness. Petitioner repeatedly failed to take advantage of these opportunities. No error was thus committed by the respondent court when it sustained the trial courts finding that petitioner had waived its right to cross-examine the opposing partys witness. It is now too late for petitioner to be raising this matter of hearsay evidence. Nor was the assailed testimony hearsay. The Court of Appeals correctly found that the witness of SIHI was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were satisfied. Respecting petitioners other submissions, the same are moot and academic. As correctly found by the Court of Appeals, petitioners admission as to the execution of the promissory note by it through private respondent Arrieta and Bermundo at pre-trial sufficed to settle the question of the genuineness of signatures. The admission having been made in a stipulation of facts at pre-trial by the parties, it must be treated as a judicial admission. Under Section 4,[11] Rule 129 of the Rules of Court, a judicial admission requires no proof. Nor will petitioners reliance on the best evidence rule[12] advance its cause. Respondent SIHI had no need to present the original of the documents as there was already a judicial admission by petitioner at pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for petitioner to be questioning their authenticity. Its admission of the existence of these documents was sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of payment or other forms of extinguishment of said obligation. No reversible error was thus committed by the appellate court when it held petitioner liable on its obligation, pursuant to Article 1159 of the Civil Code which reads:

ART. 1159. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

On the second issue, petitioner charges the Court of Appeals with reversible error for having sustained the trial courts award of attorneys fees. Petitioner relies on Radio Communications of the Philippines v. Rodriguez, 182 SCRA 899,909 (1990), where we held that when attorneys fees are awarded, the reason for the award of attorneys fees must be stated in the text of the courts decision. Petitioner submits that since the trial court did not state any reason for awarding the same, the award of attorneys fees should have been disallowed by the appellate court. We find for petitioner in this regard. It is settled that the award of attorneys fees is the exception rather than the rule, hence it is necessary for the trial court to make findings of fact and law, which would bring the case within the exception and justify the grant of the award.[13] Otherwise stated, given the failure by the trial court to explicitly state the rationale for the award of attorneys fees, the same shall be disallowed. In the present case, a perusal of the records shows that the trial court failed to explain the award of attorneys fees. We hold that the same should thereby be deleted. WHEREFORE, the instant petition is PARTLY GRANTED. The decision dated November 12, 1996 of the Court of Appeals is AFFIRMED WITH MODIFICATION that the award of attorneys fees to private respondent SIHI is hereby deleted. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

SECOND DIVISION

[G.R. No. 129057. January 22, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BILLY DE LEON, DOMINADOR DE LEON and LEOPOLDO DE LEON, accused. DOMINADOR DE LEON and LEOPOLDO DE LEON, accused-appellants. DECISION
DE LEON, JR., J.:

This is an appeal from the Decision[1] dated January 30, 1997 of the Regional Trial Court, Branch 38, Lingayen, Pangasinan, in Criminal Case No. L-5499, finding accused-appellants Leopoldo and Dominador, both surnamed de Leon, guilty of murder and sentencing them to suffer the penalty of Reclusion Perpetua and to pay, jointly and severally, the heirs of the deceased victim, Ignacio Jimenez, the sum of P15,000.00 as actual damages, P50,000.00 as compensatory damages and P50,000.00 as moral damages, as indemnity plus the cost of the suits.

The record shows that on July 23, 1996, Assistant City Prosecutor (on detail) Abraham L. Ramos II filed with the Regional Trial Court of Lingayen, Pangasinan an Information charging the brothers, Billy, Dominador and Leopoldo, all surnamed de Leon, with murder, allegedly committed as follows:

That on or about the 13th day of June 1996 in the afternoon, in barangay Lomboy, Municipality of Binmaley, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, armed with a bladed instrument, with treachery and used of superior strength and intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and stab Ignacio Jimenez, inflicting upon him the following: multiple stab wounds chest multiple hacked wound head with fracture

which injuries directly caused his death, to the damage and prejudice of the heirs of the said Ignacio Jimenez. Contrary to Article 248 of the Revised Penal Code.[2]
Only appellants Leopoldo and Dominador de Leon were brought to trial inasmuch as coaccused Billy de Leon evaded arrest. Upon being duly arraigned, Leopoldo and Dominador pleaded Not Guilty.[3] The prosecutions case relied primarily on the testimony of prosecution witnesses, Chito (Tito) Jimenez and Annaluz Hilarion, who claimed to have personally witnessed the killing as well as on the post-mortem examination and findings of Dr. Nicanor Arzadon who testified thereon. Chito Jimenez, son of the victim, Ignacio Jimenez, testified that on June 13, 1996 at around 3:00 oclock in the afternoon, while watching a game of pool beside the house of Romy Castro in Barangay Lomboy, Binmaley, Pangasinan, he saw accused Billy de Leon struck his father, Ignacio with a cap. Chito called the attention of Billy to the fact that his father was already old. Instead of heeding Chitos request, Billy boxed him on the stomach, forcing Chito to retaliate, thus a fistfight ensued. Ignacio pacified Billy and Chito, after which Ignacio and Billy left while Chito remained in the said place. Ten (10) minutes later, Billy returned, and immediately boxed and slapped Chito several times and drew a 10-inch long bolo. Chito ran towards the southern direction and met his father, Ignacio who came out of their house. While he was 10 meters away from his father, he stopped and saw Billy accosting and stabbing his father on the stomach several times. At that very instant, Leopoldo and Dominador arrived, and thereupon Leopoldo held the arms of his father, Ignacio, while Dominador stabbed the back portion of Ignacios head. Thereafter, the three (3) brothers ran away while the victim, Ignacio, walked towards his house and once near Chito, told his son to bring him to the hospital. Chito called Annaluz Hilarion who was five (5) meters away from the incident, to accompany them to

the hospital. The victim was brought to the Pangasinan Provincial Hospital in Dagupan City where he later expired.[4] Annaluz Hilarion corroborated the testimony of Chito Jimenez on some material points. Annaluz testified that at around 3:00 oclock in the afternoon of June 13, 1996 while she was resting in their house, she heard a startling commotion outside their house. Immediately, she stood up and looked through the window and saw Chito running southward to their house, and being chased by Billy who was followed by Leopoldo and Dominador. She also saw Chitos father, Ignacio, walking towards the opposite direction. When the de Leon brothers met Ignacio, they accosted the latter. Billy stabbed Ignacio on the stomach and then Leopoldo held the arms of Ignacio while Dominador took his turn in stabbing the said victim at the back of his head. Thereafter, Billy continued stabbing Ignacio on the right side of the stomach several times, and then the said de Leon brothers ran away. Ignacio struggled toward the direction of his house, but he fell down and was not able to reach the same. Together with Chito, they brought the victim to the Pangasinan Provincial Hospital in Dagupan City but expired while being treated.[5] Annaluz likewise stated that neither Chito nor Ignacio was holding a stone or any weapon at the time she
saw them.[6]

Nicanor Arzadon, resident physician of the Pangasinan Provincial Hospital[7] at Dagupan City testified on the injuries sustained by Ignacio and the cause of his death. He testified that he conducted an autopsy of the victim several hours after the latters death and thereafter prepared an autopsy report. In his post-mortem examination,[8] he observed the following wounds sustained and the cause of death of the victim, thus:
1. Incised wound 7 cm. angle of mandible (L) located on the left face; 2. Hacked wound 8 cm. Temporal area (L) on the left side of the head; 3. Stab wound 3 cm. (L) midaxillary line, level of the 7th ICS, penetrating, perforating middle portion lower lobe (L) lung; 4. Stab wound 4 cm., 8th ICS, ant. Axillary line, penetrating, lacerating diaphragm, penetrating, perforating greater curvature of stomach; 5. Stab wound 4 cm. mid. Hypochondria area, (L) penetrating, perforating lesser curvature; 6. Stab wound, 3 cm. Epigastric area (L) penetrating, perforating body of stomach, thru and thru, penetrating, lacerating body of pancreas; 7. Stab wound 7 cm. Intercostal space, mid-clavicular line (R) non-penetrating, right side below right nipple; 8. Stab wound 3 cm. Intercostal space, midclavicular line (R) penetrating lacerating lower lobe (R) liver; 9. Hacked wound, 6 cm. parietal area; 10. Massive intra-abdominal bleeding.

CAUSE OF DEATH: Hypovolemia 2o to multiple stab wound.

Dr. Nicanor Arzadon declared that a sharp bladed instrument caused the said wounds, and based on the sizes of the wounds, it is likely possible that two (2) or more kinds of weapons were used in hacking or stabbing the victim.[9] Rita Jimenez, wife of victim Ignacio, testified regarding the expenses incurred by the family in connection with her husbands death, as follows: for the 9 days vigil,P4,500.00; for coffin and funeral services, P7,500.00; for the autopsy examination, P1,000.00; for wreath, P1,000.00; for the last night vigil, P3,500.00; for food and fish, P2,000.00; for church rites, P600.00; for the novena, P500.00; and for the lompos, P1,500.00.[10] On their part, both accused-appellants Leopoldo and Dominador invoked the defense of denial and alibi. They claimed that in the afternoon of June 13, 1996, they went to Manat, Binmaley upon the invitation of Modesto Reyes, to harvest fish in the latters fishpen. They arrived at around 1:00 oclock in the afternoon and left the said place at around 3:00 oclock in the afternoon of the same day. At around 4:00 oclock, they were already home. Mercedes, wife of Leopoldo, informed them that their brother, Billy, stabbed Ignacio. Mercedes told Leopoldo not to go out of the house as Ignacios sons might retaliate against them. When the policemen arrived, Leopoldo and Dominador were invited to the police station. After some questioning by SPO4 Crispin Cancino, they were asked to go out of the room and made to sign the police blotter. They were not allowed to leave the police station, and on the following day, they were placed behind bars.[11] Mercedes de Leon, wife of Leopoldo, Dina de Leon, wife of Dominador and Modesto Reyes, owner of the fishpen where accused-appellants have allegedly harvested fish, tried to corroborate accused-appellants alibi. Those three (3) defense witnesses declared that at the time of the stabbing incident, Leopoldo and Dominador were at Manat, Binmaley, Pangasinan, harvesting fish; and that accused-appellants arrived home from Manat at 4:00 oclock in the afternoon, or after the stabbing incident. On January 30, 1997, a Decision was rendered by the trial court finding accused-appellants guilty of murder. The judgment reads:

Accordingly, in the light of all the considerations discussed above, the court finds and holds the accused, Dominador de Leon and Leopoldo de Leon, guilty beyond reasonable doubt of the crime of Murder charged in the Information filed against them, and pursuant to law, hereby sentences each of the above-named accused to suffer the penalty of Reclusion Perpetua and to pay proportionately the cost of the proceedings. The court further directs the accused to indemnify jointly and severally the heirs of the deceased, the sum of P15,000.00 as actual damages; P50,000.00 as compensatory damages and P50,000.00 as moral damages, without subsidiary imprisonment in case of insolvency. And considering that accused, Billy de Leon is still at large and has not yet been arrested up to the present, let the record of the case insofar as said accused is

concerned be sent to the files, without prejudice on the part of the prosecution to prosecute him after he is arrested or has surrendered to the court. Meantime, let an order of arrest be issued against accused Billy de Leon, to be served upon him by the PNP, Binmaley, CIG, Dagupan City and NBI, Dagupan City. SO ORDERED.
Hence, this appeal. Accused-appellants, in their appeal prayed for acquittal by (1) impugning the credibility of the two (2) main prosecution witnesses, Chito Jimenez and Annaluz Hilarion, and (2) claiming alibi that they were somewhere else when the crime happened. On the first issue for resolution, i.e. whether the trial court erred in giving credence to the prosecutions version of the incident that not only Billy de Leon, but also accused-appellants Leopoldo and Dominador were guilty of stabbing the victim, Ignacio Jimenez, to death, well settled is the rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner while testifying during the trial, unless the trial court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.[12] No cogent reasons exist to disturb the factual findings of the trial court, more particularly on its assessment of the credibility of the prosecution witnesses. The trial court correctly ascertained that the testimonies of the prosecution witnesses Chito and Annaluz clearly and adequately proved how the killing happened and the extent of accusedappellants participation in that incident. Both witnesses testified in a straightforward, clear and positive manner and the court finds no valid and plausible reason to discredit the truth and veracity of their narration. As recounted by Annaluz in her testimony
ATTY. BASBAS Will you kindly tell the Honorable Court what was that incident that called your attention, Madam Witness? A Q A Q A They said that there is trouble, sir. What, if any, did you do when you heard the word in Pangasinan dialect, gulo, which means trouble? I stood up and looked out the window, sir. What, if any, did you see when you looked out the window? I saw Chito Jimenez running, then, Ignacio Jimenez passed by, sir.

COURT Passed by your house? A Yes, sir.

ATTY. BASBAS

To what direction was Chito Jimenez proceeding when you saw him running? A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q Towards their house, south direction, sir. How about Ignacio Jimenez? While Ignacio Jimenez was running towards the north direction, sir. By the way, do you know the relation between Ignacio Jimenez and Chito Jimenez? They are father and son, sir. What happened next after you saw Chito Jimenez running towards their house going to southern direction and Ignacio Jimenez on the northern direction? Billy de Leon, Dominador de Leon and Leopoldo de Leon were also running, sir. To what direction were [sic] Billy de Leon, Dominador de Leon and Leopoldo de Leon proceedings when you saw them running? They were chasing Chito Jimenez, sir, going south. What happened next after you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Chito Jimenez? They saw Ignacio Jimenez and they accosted him, sir. When you said they accosted him, to whom are you referring to as accosted? Ignacio Jimenez, sir. After Ignacio Jimenez was accosted by the three (3) Billy de Leon, Dominador de Leon and Leopoldo de Leon, what happened next? They stabbed him, sir. Do you know who among the three (3) stabbed Ignacio Jimenez? First, it was Billy de Leon who stabbed Ignacio Jimenez while Leopoldo de Leon held Ignacio Jimenez, sir. After Leopoldo de Leon held Ignacio Jimenez, what happened next? Then, Dominador de Leon stabbed Ignacio Jimenez on his head, sir. (Witness pointing the back top of the head). Will you kindly stand up, Madam witness, and demonstrate before this Honorable Court how did Leopoldo de Leon hold Ignacio Jimenez? Like this, sir (Witness place herself behind with both arms holding the shoulder. The court interpreter represents the victim in the demonstration through the armpit). What happened next after Dominador de Leon stabbed Ignacio Jimenez at the back of his head? Then, Billy de Leon kept on stabbing the victim, sir. By the way, Madam Witness, you mentioned a while ago that Billy de Leon first stabbed Ignacio Jimenez, my question, what part of the body of Ignacio Jimenez was hit by Billy de Leon when he was first stabbed by Billy de Leon? On his stomach, sir (Witness pointing to the right side of his stomach).

And when you said that Billy de Leon continued stabbing Ignacio Jimenez after he was stabbed by Dominador de Leon at the back of his head, what part or parts of the body of Ignacio Jimenez was hit by Billy de Leon? On the abdomen, sir. What happened next after Billy de Leon stabbed Ignacio Jimenez in the abdomen? The three (3) ran away, sir.[13]

A Q A

On cross-examination, Annaluz categorically stated that:

ATTY. CAMPOS By the way, who was the first one whom you saw running among the three? A Billy de Leon was ahead, sir.

COURT Followed by? A Dominador de Leon and Leopoldo de Leon, sir.

ATTY. CAMPOS As you sense they were running, they were chasing Chito Jimenez? A Q A Q A Q A Q A Q A Q A Q A Q Yes, sir. And they were unable to catch Chito Jimenez? No, sir. At that time when you saw Billy de Leon, he was already injured, am I correct? Not yet, sir. You did not see him to have wound on his head? None, sir? Along their way, Madam Witness, the three (3), Billy de Leon, Dominador de Leon and Leopoldo de Leon, met Ignacio Jimenez who was running towards north? Yes, sir. It was at that instance the three (3) met Ignacio Jimenez when the three (3), according to you, stabbed Ignacio Jimenez? Yes, sir. When you saw Billy de Leon, Dominador de Leon and Leopoldo de Leon running and chasing Jimenez, you did not see them arm, am I correct? They were armed, sir. And who was armed, Madam Witness? The three (3) were armed, sir. And what was Billy de Leon carrying with him as a weapon?

A Q A Q A Q A Q A

Billy de Leon was carrying a bolo about one (1) foot long, sir. How about Dominador de Leon? Bolo with the same size, sir. How about Leopoldo de Leon? Before he held Ignacio Jimenez on the shoulders, he threw his bolo, sir. Were you able to find this bolo which was thrown by Leopoldo de Leon? No more, sir. You saw where Leopoldo de Leon threw the bolo? At the time they ran away towards their house, they picked up the bolo and then brought with them, sir.[14]

Likewise, Chito Jimenez on cross-examination declared that:

ATTY. CAMPOS The moment you met your father along your way when you were running, the two (2) other accused, Leopoldo de Leon and Dominador de Leon, were not yet around? A Q A Q A Q A Q A Q A Q A Q A After I met my father, then, my father met Billy de Leon and then the two (2) Dominador and Leopoldo de Leon, appeared sir. From what direction did these two (2) other accused, Leopoldo de Leon and Dominador de Leon, come from, Mr. Witness? They came from their house, sir. By the way, how far is the house of Leopoldo de Leon from that place where you met your father when you were running? Just beyond the concrete fence, about fifteen (15) meters from the fence of the court building, sir. And how about the house of Dominador de Leon in relation to that place where you met your father along your way when you were running? The same distance, sir. According to you, you were running so fast and you ran as fast as you could towards your house, you never look back when you were running? I looked back, sir. How could that be that you recognized these two (2) other accused, Leopoldo de Leon and Dominador de Leon, when you were running fast? I stopped, sir. When you reached your house, am I correct? Yes, sir. And you stayed inside your house upon reaching your house, is that correct? I did not proceed home but I stopped besides the house of Annaluz, sir.

Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A

And you are now changing your testimony when you said a while ago that you stopped running upon reaching home? Yes, sir, is not true. The truth now is that, you where, Mr. Witness? Ten (10) meters away from the place of stabbing, sir. Why did you stop, Mr. Witness? Because Billy de Leon accosted my father and then these two (2) brothers arrived, sir. Did you really see how Billy de Leon accosted your father? Yes, sir. When your father was accosted by Billy de Leon, you did not notice Leopoldo de Leon and Dominador de Leon around? It was then that the two (2) arrived, sir. And the moment Billy de Leon accosted your father, he stabbed your father? Yes, sir. Comes these two (2) other accused, first, Leopoldo de Leon held the arms of your father, then Dominador de Leon whom you alleged to have also stabbed your father? Yes, sir. And when these were happening you were about ten (10) meters away from the four (4)? Yes, sir. And while Ignacio Jimenez or your father was being handled by the three (3) accused, you did not do anything just watched, am I correct? Yes, sir. I watched them because I got frightened, sir. You did not come to the aid of your father? No, sir. Neither that you called for help from other persons who were around? No, sir. But there were other persons around, am I correct? I did not notice, sir. And so, your attention was only focused on what was happening to your father? Yes, sir.[15]

In an attempt to discredit the prosecution witnesses, accused-appellants contend that their testimonies are contradictory in that while Annaluz testified that accused-appellants Leopoldo and Dominador ran with Billy in chasing Chito, prosecution witness Chito, on the other hand, declared that Leopoldo and Dominador appeared only when his father, Ignacio, was being accosted by Billy. The inconsistencies, if any, were more imaginary than real. Besides, the

inconsistencies, if any, in the testimony of the prosecution witnesses refer only to minor details and collateral matters which do not affect the substance, veracity, and weight of their testimony. They even tended to strengthen rather than weakened, the credibility of the witnesses as they negate any suspicion of a rehearsed testimony.[16] Furthermore, the court cannot and should not expect the testimonies of different witnesses to be completely identical and to coincide with each other for not all persons who witnessed an incident are impressed in the same manner; and it is only natural that, in relating their impressions, they might disagree on some minor details. The credibility of the prosecution witnesses is not affected by their relationship with the deceased. The fact that witness Chito is the son of the victim while Annaluzs mother-in-law is the second cousin of the wife of the victim is of no consequence since mere relationship with the victim does not necessarily tarnish the testimony of a witness. When there is no showing of improper motive on the part of the witness in testifying against the accused, her relationship with the victim does not render her testimony less worthy of full faith and credence.[17] In fact, relationship itself could even strengthen credibility in a particular case, for it is highly unnatural for an aggrieved relative to falsely accuse someone other than the actual culprit. The earnest desire to seek justice for a dead kin is not served should the witness abandon his conscience and prudence to blame one who is innocent of the crime.[18] Likewise, as shown by the medical examination, the victim sustained nine (9) stab wounds. Dr. Arzadon who conducted the post mortem examination of the victim opined that two (2) different weapons could have caused the wounds of the victim. He testified:
COURT Now, considering the two possibilities that it could be one weapon or more than two weapons, what is the greater possibility? A Q A Q A Q A Q A Q A I could not tell, sir. You could not tell despite the fact that there are different sizes as you say about the length? In my opinion, it is more than two, sir. So, the greater possibility is more than two weapons? Yes, sir. Now, considering also the nature of the wounds more particularly in their sizes, is it possible that there are more than one weapon used in inflicting the injuries? It is possible, sir. Is it also possible that there is only one weapon used or not possible? It is possible, sir. Considering now the two possibilities, which is more possible considering the sizes of the wounds, there are two or more kinds of weapon used or only one kind of weapon? More than one kind of weapon, sir.[19]

Billy could not have been solely responsible for all the stab wounds sustained by the victim as the same were in all probability caused by two (2) different weapons. None of the witnesses for the defense, more particularly Mercedes de Leon, who testified that Billy was the only one

responsible, declared on the witness stand that Billy used more than one weapon in stabbing the victim. On the other hand, accused-appellants defense is a bare and shallow alibi which is a weak defense. It should be rejected inasmuch as the identities of the accused, as in the case at bar, have been sufficiently and positively established by eyewitnesses to the offense.[20] As amply observed by the trial court, there is no proof of physical impossibility for the accused-appellants to be present in the scene of the crime. Hence, in the light of the positive identification of accused-appellants, by two (2) eyewitnesses, as the perpetrators of the crime, their defense of denial and alibi cannot prosper. On the matter of conspiracy, we have consistently held that conspiracy need not be shown by direct proof of an agreement by the parties to commit the crime.[21] It is sufficient that there is a common purpose and design, concerted action and concurrence of interests and the minds of the parties meet understandingly so as to bring about a deliberate agreement to commit the offense charged, notwithstanding the absence of a formal agreement.[22] The credible testimonies of prosecution witnesses Annaluz and Chito disclosed that after Billy accosted Ignacio, the former stabbed the latter on the stomach one or two (2) times, then Leopoldo held the arms of Ignacio; and then Dominador took his turn in stabbing the victim at the back of the head. Billy continued stabbing the victim, and then the three (3) accusedbrothers left and ran away at the same time. These concurrent actions of accused Billy and accused-appellants Leopoldo and Dominador which revealed a mutual intention and determination to kill the victim, Ignacio, indicated conspiracy. We likewise affirmed the trial courts holding that the killing is qualified to murder by abuse of superior strength, accused-appellants having overpowered the unarmed victim in terms of number and weapons used. To take advantage of superior strength is to purposely use excessive force out of proportion to the means of defense available to the person attacked.[23] Although superiority in number is not always superiority in strength, the same is decidedly true in the case at bar where all the appellants were armed. Furthermore, there was only one adversary, an unarmed man who at that time was in no position to defend himself. As aptly held by the trial court and we quote:

In the case at bar, the evidence on record shows that during the stabbing accused Leopoldo de Leon held the victim while his brothers Billy and Dominador stabbed him several times in the different parts of his body. Such being the state of affairs at the time the incident happened, the combined strength of the three accused is more superior than the strength of the deceased who was much older than the accused. Verily, the stabbing is qualified by the circumstance of abuse of superior strength, hence the killing is murder as charged in the Information.
Anent accused-appellants civil liability, the award of P15,000.00 as actual damages should be deleted inasmuch as there were no receipts presented to evidence the same. The award of P50,000.00 designated as compensatory damages by the trial court should be properly denominated as civil indemnity ex delicto. This amount of indemnity is in accordance with jurisprudence and it requires no proof other than the fact of death as a result of the crime and proof of the appellants responsibility therefor.

WHEREFORE, the appealed Decision dated January 30, 1997 of the Regional Trial Court of Lingayen, Pangasinan, Branch 38, in Criminal Case No. L-5499 finding appellants Leopoldo de Leon and Dominador de Leon, guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of Reclusion Perpetua is AFFIRMED with MODIFICATION that appellants are ordered to pay, jointly and severally, only the amounts of P50,000.00 as civil indemnity ex delicto and P50,000.00 as moral damages, to the heirs of the victim, Ignacio Jimenez. The award of P15,000.00, as actual damages, is deleted for lack of proof thereof. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

EN BANC

[G. R. No. 138264. April 20, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS ENRIQUEZ a.k.a. Rodolfo Enriquez and Bebot Enriquez, accused-appellants. DECISION
DAVIDE, JR., C.J.:

The accused-appellant Tomas Enriquez (hereafter ENRIQUEZ) was charged with the crime of murder for the violent death of Jessie Conlu (hereafter JESSIE) in Criminal Case No. 11858 before the then Court of First Instance of Iloilo City. The information filed against him on 16 November 1979 read as follows:

That on or about the 13th day of October, 1979, in the City of Iloilo, Philippines, and within the jurisdiction of this Court, said accused, with deliberate intent, without justifiable motive, with a decided purpose to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and criminally stab, hit and wound Jessie Conlu with a double bladed stainless knife, with which the said accused was provided at the time, causing upon said Jessie Conlu a stab wound on a vital part of his body, which caused his instantaneous death. CONTRARY TO LAW. Iloilo City, Philippines, November 16, 1979.[1]
In an Order dated 21 November 1979[2], the trial court issued a warrant of arrest against ENRIQUEZ and fixed a bail bond of P30,000 for his provisional liberty. The case was archived because ENRIQUEZ remained at large.[3]

Several years thereafter, or on 19 April 1991, ENRIQUEZ was arrested. In a petition for habeas corpus docketed as Special Proceeding No. 9676 and assigned to Branch 38 of the Regional Trial Court of Iloilo City, he questioned the legality of the warrant of arrest. In its decision[4] of 30 April 1991, said court declared illegal the arrest of ENRIQUEZ and ordered his release from detention. On 29 June 1995,[5] an Amended Information was filed against ENRIQUEZ before the Regional Trial Court of Iloilo City. It contained essentially the same allegations as that of the original information, except that the aliases of ENRIQUEZ, namely Rodolfo Enriquez and Bebot Enriquez, were included and no bail was recommended for his temporary liberty. On 6 July 1995,[6] ENRIQUEZ applied for bail, citing as basis therefor his admission to bail in the original information. On 16 July 1995, and pending the action on his application for bail, ENRIQUEZ was arrested.[7] In its Order of 22 August 1995,[8] the trial court denied the application for bail on the grounds that ENRIQUEZ was a fugitive from justice; he was convicted of several offenses; and the evidence against him was strong. ENRIQUEZ assailed the order before the Court of Appeals in a petition docketed as C.A.-G.R. SP No. 38729. In its decision of 29 February 1996,[9] the Court of Appeals set aside the challenged order because it failed to state clearly the basis upon which ENRIQUEZs application for bail was denied. In its order of 16 April 1996,[10] the trial court, citing as basis the facts and evidence on record, denied again the application for bail. ENRIQUEZ challenged this order in a petition he filed with the Court of Appeals which was docketed as CA-G.R. SP No. 41298. In the decision[11] of a Special Division, the Court of Appeals set aside the 16 April 1996 order of the trial court. Accordingly, on 24 March 1997,[12] the trial court fixed at P60,000 the bail bond for the provisional liberty of ENRIQUEZ. On the same date, ENRIQUEZ was released from detention after Congressman Raul Gonzales deposited in court the cash bond of P60,000.[13] Thereafter, ENRIQUEZ sought the inhibition of Presiding Judge Jose Abdallah of Branch 39 of the trial court. Pursuant to our Resolution[14] of 9 December 1997, Presiding Judge Bartolome M. Fanual of Branch 25 of said court was designated to hear and decide the case. On 8 April 1998,[15] Congressman Gonzalez withdrew the cash bond he posted for ENRIQUEZ. On 29 April 1998,[16] ENRIQUEZ was arrested, but was again released after he posted a cash bond.[17] After trial on the merits, the trial court rendered on 8 October 1998 a Decision[18] finding ENRIQUEZ guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of death and to indemnify the family of the victim in the amount of P50,000 and to pay the costs. It took into account the qualifying circumstance of treachery and the aggravating circumstance of evident premeditation. The decretal portion of the decision reads as follows:

Accordingly, premises considered, the Court, finding the accused, Tomas Rodolfo Enriquez alias Bebot, guilty beyond reasonable doubt of the crime of murder and charged with the qualifying circumstance of treachery and an aggravating circumstance of evident premeditation, hereby sentences him to an extreme penalty of

death as well as orders him to indemnify the family of the victim the amount of P50, 000.00 and to pay the costs. The bail bond posted for his provisional liberty is cancelled and returned to him, and that his arrest is hereby ordered for him to serve his sentence. The bail bond posted for his provisional liberty is cancelled and returned to him, and that his arrest is hereby ordered for him to serve his sentence. SO ORDERED.
On 29 October 1998,[19] ENRIQUEZ was arrested and committed to the Provincial Jail of Iloilo City. The witnesses presented by the prosecution were Dr. Tito Doromal, Rene de la Pea and Romeo Ladrillo. Dr. Tito Doromal, a Medico-Legal Officer of the Philippine National Police, testified that on 13 October 1979, he examined the dead body of a certain Jessie Conlu and prepared an Autopsy Report[20] describing the wound inflicted and the cause of his death and an Anatomical Sketch[21] of the victims body. Dr. Doromal opined that the wound was inflicted by a sharp pointed, single bladed instrument, presumably a knife. The wound was fatal as it penetrated the heart of the victim causing his instantaneous death. In all probability the assailant was facing the victim during the attack as evidenced by the stab wound on the chest bone.[22] Rene de la Pea, a resident of Barangay Duyan-Duyan, Sta. Barbara, Iloilo City, testified that he personally knew ENRIQUEZ because they used to hang around together since 1968. ENRIQUEZ, an amateur boxer then, was the sparring partner of Renes uncle Rodolfo Tato.[23] On 13 October 1979, Rene was working as a stevedore in ILIASCO, a company engaged in arrastre service, and was tasked to load and unload cargoes from the ships Princess of Negros and Don Vicente. ILIASCOs office was located at the corner of Blumentritt Street and Muelle Loney Street, in Iloilo City. At about 3:00 to 3:30 p.m. of 13 October 1979, Rene and his brother Christian were at the Coca-Cola plant located at the corner of Melliza Street and Muelle Loney Street. At that time, Rene was passing on the basket of tomatoes to Christian who in turn loaded the basket to the ship carrier Princess of Negros. He noticed ENRIQUEZ, then clad in maong pants and white T- shirt, walking along Melliza Street. Rene also saw JESSIE, who was wearing a white shirt with stripes, walking along Muelle Loney Street and heading towards the direction of ENRIQUEZ. Immediately thereafter, ENRIQUEZ armed with a pointed instrument wrapped with a piece of cloth, ran slowly toward JESSIE and stabbed the latter. JESSIE held his chest, vomited blood and fell to the ground. ENRIQUEZ stared at JESSIE and immediately fled. Rene saw all of these because he was standing at a distance of approximately five meters from ENRIQUEZ and JESSIE. After the incident, Rene continued to perform his work since he expected that somebody would come to aid JESSIE. A policeman by the name of Dignadice, Jr. arrived at the scene of the crime and removed JESSIEs body.[24]

Prior to that fateful day, ENRIQUEZ solicited Renes help to kill JESSIE because the latter was having an affair with ENRIQUEZs wife. Rene turned down the request.[25] Rene did not report what he had witnessed to the police authorities. He decided to testify because his conscience bothered him, and a certain Boyboy Cordera prodded him to appear in court to testify. Boyboy had learned from Romeo Ledrillo, a co-worker of Rene at the arrastre, that Rene witnessed the incident. Lastly, Rene denied that he was offered any price or money or that he harbored a grudge against ENRIQUEZ.[26] Romeo Ladrillo testified that sometime in 1991 he became a resident of Barangay KasingKasing, Molo, Iloilo City. He, too, became familiar with ENRIQUEZ and had known the latter under the name Rodofo Enriquez alias Bebot Enriquez. ENRIQUEZ was the barangay captain of their barangay.[27] Such familiarity began during the time when ENRIQUEZ used to do odd jobs in Muelle Loney Street.[28] Romeo was also familiar with JESSIE who was engaged in the business of selling fighting cocks.[29] On 13 October 1979, Romeo was working as a foreman of Negros Navigation. At about 3:15 p.m. of that day, he was at Bong-Bongs store located across the Coca-Coca plant at Melliza Street. At a distance of four to five meters, he saw JESSIE walking alongside the Coca-Cola plant. Likewise, Romeo noticed ENRIQUEZ moved near JESSIE and stabbed the latter on the chest with something in his hand covered by a white cloth. Thereafter, JESSIE spurted blood and fell flat on the ground. ENRIQUEZ ran away.[30] Romeo left the scene immediately after the policemen arrived.[31] Romeo further declared that Rene de la Pea was also present at the scene and witnessed the incident.[32] Romeo also corroborated the testimony of Rene regarding the plan of ENRIQUEZ to kill JESSIE.[33] Lastly, Romeo declared that he testified because of his concern for the truth and his conscience bothered him. Through the prodding of Ulysses Corvera, a resident of Barangay Kasing-Kasing, Molo, Iloilo City, Romeo revealed what he knew about the incident to a certain Fiscal Castrojas.[34] The defense presented as its witnesses Wilfredo Altamia, Christian de la Pea, and ENRIQUEZ. Wilfredo Altamia, a resident of Tabucan, Mandurriao, Iloilo City, testified that in 1966 he was a great fan of ENRIQUEZ, who was then a singer in the local radio. Sometime in 1978, he joined ENRIQUEZ as vocalist of the Dazzers Orchestra, a musical band owned by Henrietta Jayme. On 13 October 1979, the band was contracted to perform in Maayon, in the Province of Capiz. At about 10:00 to 11:30 a.m. of that day, the members of the band consisting of about 15 members, including ENRIQUEZ, rode on a truck from Lapaz, Iloilo City for Maayon. They arrived in Maayon at about 3:00 to 4:00 p.m. of the same day. Their musical engagement in Maayon started at 8:00 p.m. of 13 October 1979, and they performed until 2:00 a.m. of the following day, 14 October 1979. Wilfredo asserted that ENRIQUEZ was with them from the time they left Iloilo City until the end of their performance in Maayon.[35] Thereafter, the group returned to Iloilo City and arrived thereat at around 8:00 a.m. of 14 October 1979.[36]

Wilfredo further declared that he and ENRIQUEZ left the Dazzers Orchestra in 1983 and 1981, respectively.[37] It was only on 2 June 1998 that he learned about the criminal indictment against ENRIQUEZ.[38] Christian de la Pea, also a resident of Barangay Kasing-Kasing, Molo, Iloilo City, testified that he became acquainted with ENRIQUEZ sometime in 1992.[39] He worked from 1977 up to 1980 as a stevedore of ILIASCO. He was not aware of any untoward incident that transpired on 13 October 1979; and opined that during those times, stabbing, shooting or robbery was an ordinary occurrence in view of the proliferation of gang wars in the place.[40] Lastly, Christian declared that he was not familiar with JESSIE not until 1 June 1998 when a certain Atty. Padojinog showed him a document proving that his brother-in-law Romeo and his brother Rene testified in court on the death of JESSIE.[41] ENRIQUEZ testified that in 1965 he became a resident of Barangay Kasing-Kasing, Molo, Iloilo City, and that he held the position of a barangay captain of the barangay since 1989. ENRIQUEZ admitted that he was christened as Tomas Rodolfo Enriquez, although he was also identified as Tomas Bebot Enriquez or Rodolfo Bebot Enriquez. He denied having been acquainted with JESSIE and claimed that he became familiar with such name only in 1992 when a warrant of arrest was issued against him. ENRIQUEZ theorized that the present case was politically motivated. He cited the presence in court of Ulysses Colvera, his political rival in the 1997 election, and that he was arrested in 1992 by a certain Mayor Ganzon. To further show his innocence and lack of knowledge of the circumstances surrounding JESSIEs death, ENRIQUEZ declared that he learned about the charge against him only in 1992. Prior to said date, he was not investigated by the police authorities relative to the crime he allegedly committed.[42] ENRIQUEZ further declared that he was a member of Dazzers Orchestra. On 13 October 1979, he and the members of the band left Iloilo City for a singing engagement in Maayon, Capiz. They returned to Iloilo City the following day and arrived thereat at about 8:00 a.m.[43] The trial courts judgment of conviction was primarily based on the testimonial account of Rene de la Pea and Romeo Ladrillo who both witnessed the commission of the crime from a distance of about four to five meters and positively identified ENRIQUEZ as the assailant. The crime was perpetrated in broad daylight, in full view of and within the range of vision of Rene and Romeo who were ENRIQUEZ co-workers and long-time acquaintances. In view of these, the defense of denial and alibi interposed by ENRIQUEZ has no leg to stand on.[44] The trial court further observed that there was no showing of a personal hostility between ENRIQUEZ and the prosecution witnesses to raise doubt on the trustworthiness of the latters testimony. It struck down for lack of merit ENRIQUEZ claim that his political enemies instigated the charge against him. There was no intimation that Rene and Romeo were influenced by a political ambition neither was there a showing that a promise or reward was offered to them. The trial court also ruled that ENRIQUEZ cannot make much of the fact of delay in the prosecution of this case. While indeed the crime was perpetrated in 1979, the evidence on record shows that it was only in 1992 when ENRIQUEZ was arrested. The prosecution of the case was further delayed when, by means of a petition for habeas corpus, ENRIQUEZ successfully

challenged the validity of his arrest alleging that he was not the Tomas Enriquez referred to in the warrant of arrest. The trial court appreciated against ENRIQUEZ the qualifying circumstance of treachery. To justify the imposition of the death penalty, the trial court appreciated the generic aggravating circumstance of evident premeditation, which was not offset by any mitigating circumstance. The finding of treachery was based on the swiftness of the attack on a victim who was unsuspecting, unarmed and was not in a position to retaliate.[45] As to evident premeditation, it considered the testimony of Rene and Romeo that a few days prior to the incident ENRIQUEZ revealed to the former the latters intention to kill JESSIE. The case is now before us for automatic review of the judgment pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. 7659. In his Appellants Brief ENRIQUEZ alleges that the court a quo erred in finding that:
I

THE TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION ARE CREDIBLE AND DESERVING OF CREDENCE.
II

THE INSINUATION THAT POLITICS MAY HAVE PROMPTED THE WITNESSES TO TESTIFY AGAINST THE ACCUSED DOES NOT HAVE SUPPORT OF SATISFACTORY PROOF.
III

THE PRESENCE OF QUALIFYING CIRCUMSTANCE OF TREACHERY AND EVIDENT PREMEDITATION WAS DULY PROVEN.
and that it committed grave or serious error in:
IV

CONVICTING THE ACCUSED OF DEATH PENALTY.

V

NOT CONSIDERING THE INORDINATE DELAY IN THE TRIAL OF THE CASE IN VIOLATION OF THE CONSTITUTION OF THE PHILIPPINES ON SPEEDY DISPOSITION OF THE CASE.
ENRIQUEZ attacks the credibility of the prosecution witnesses particularly Rene de la Pea and Romeo Ladrillo. He harps on the alleged material inconsistencies and contradictory statements of Rene and Romeo. On direct examination Rene declared that at the time of the stabbing incident he was hanging around near the premises of the old site of Coca-Cola plant when the stabbing incident happened because they went there after finishing their work as the

ferry boat left.[46] However, in the cross-examination, Rene was clear enough in saying that he was actually busy with his job putting the basket of tomatoes to the shoulder of his brother Christian de la Pea the one loading it to the ship,[47] at the time of the incident. It was also incredible to believe that Rene would voluntarily testify because of an alleged guilty conscience. Rene, who was not related to the victim, cannot be more interested than JESSIEs wife who had expressed disinterest in the prosecution of the instant case. Further eroding the truthfulness of Renes testimony were the following: (1) he failed to make an accurate account for the reason of the delay in the departure of the ship; (2) he had known Boyboy Cordera only on 11 June 1996, when in truth and in fact he had been visiting the residence of his parents in Molo, Iloilo City, which was also the place where Boyboy resided; (3) it was physically impossible for Rene to have observed the happening of the incident and at the same time witnessed the activity of ENRIQUEZ and of the victim; and (4) he was not consistent in his declaration that after the incident until July 1995 he had not met and talked with ENRIQUEZ. ENRIQUEZ further alleges that there were material inconsistencies between the testimonies of Rene and Romeo in that: (1) according to Romeo the crime happened by the side of the old Coca-Cola plant while Rene declared that it happened across the street of the old Coca-Cola plant[48]; (2) since Rene and Romeo were situated at different locations, it was not possible that they would witness the stabbing incident at the same distance; (3) they were unable to establish with certainty whether Christian de la Pea was present at the scene of the crime; (4) they differed in their testimony on the behavior of ENRIQUEZ after the stabbing incident; and (5) both gave a different version as to the exact number of policemen who arrived at the scene of the crime. ENRIQUEZ considers as improbable the similarity in the declaration of Rene and Romeo regarding the circumstances surrounding the incident. The similar pattern of describing the incident strongly suggests that they were rehearsed and were, therefore, unreliable witnesses. That the witnesses exhibited extraordinary mental ability for remembering every detail of the incident does not coincide with the reality taking into account their lowly position as mere porters. It was also unusual that Romeo and Rene did not reveal to anybody what they had witnessed on that fateful day. In support of the second assigned error, ENRIQUEZ theorizes that the instant case is politically motivated. He capitalizes on the following facts: (1) he was a candidate for the position of and had been elected as barangay captain of Barangay Kasing-Kasing, Molo, Iloilo City; (2) the witnesses for the prosecution Rene and Romeo came out in the open to testify on an incident that occurred sixteen years ago; and (3) Mr. Colvera and a certain Tony, who were both known as his political rivals in the barangay election, orchestrated the move to induce Rene and Romeo to testify against him. As to the third assigned error, ENRIQUEZ asserts that the evidence of the prosecution on the issue of treachery and evident premeditation was controverted by the following facts: (1) ENRIQUEZ ran towards the victim which necessarily put the latter on guard of the latters harmful intention; (2) if indeed the knife used to kill the victim was wrapped in a cloth, then the weapon could not have deeply penetrated the victims body; (3) the attack on the victim was frontal; and (4) the crime was perpetrated within the view of many people. Anent the fourth assigned error, ENRIQUEZ claims that there was no basis for the trial courts imposition of the penalty of death since the crime was committed in 1979. The death

penalty may be imposed only during the operation of the 1987 Constitution and R.A. No. 7659 and not before the enactment of the latter. The trial courts imposition of the death penalty violated the constitutional proscription on the operation of ex post facto law. Finally, in support of the last assigned error, ENRIQUEZ invokes Section 16 of Article III of the 1987 Constitution on speedy trial. A violation of his right to a speedy disposition of the case entitles him to a dismissal thereof, which is equivalent to an acquittal on the merits. In the Appellees Brief, the Office of the Solicitor General (OSG), prays for the affirmance of the trial courts judgment of conviction with the modification that the penalty imposed should be lowered to reclusion perpetua. It argued that the assailed inconsistencies in the testimony of the prosecution witnesses do not refer to material points. The lack of symmetry or exact identity in their testimony served to augment rather than dilute the trustworthiness of their testimony.[49] The alleged discrepancies were insufficient to outweigh the categorical statement of the witnesses for the prosecution on the commission of the crime by ENRIQUEZ. Furthermore, it was not incredible that a witness, who only wanted the dispensation of justice, would voluntarily testify about a crime which happened sixteen years back. There was also insufficient evidence showing that the opponents of ENRIQUEZ in politics had induced the witnesses of the prosecution to falsely testify against him. Moreover, the Appellee was not responsible for the delay in the prosecution of this case and did not violate the right of ENRIQUEZ to speedy trial. ENRIQUEZ was arrested only on 19 April 1991 and shortly thereafter he filed a petition for habeas corpus which paved the way for his release from detention. He was re-arrested in 1995 only. The Appellee asserts that there was enough evidence on the record to support the finding of the trial court on treachery. The attack was sudden and unexpected and the victim was caught unaware on the danger to his life.[50] As to evident premeditation, ENRIQUEZ had contrived to kill the victim three days before the incident. However, the OSG submits that the trial court erred in imposing the death penalty since the crime was committed at the time when under the 1987 Constitution the penalty of death was abolished. The Death Penalty Law, R.A. 7659, cannot be applied to the instant case since it would be unfavorable to the accused.[51] We shall resolve the first and the second assigned errors since they both pertain to the issue of credibility. It is doctrinally settled that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a better position to decide the question, having heard the witnesses themselves and observe their deportment and manner of testifying during trial. This rule admits of exceptions, such as when the evaluation was reached arbitrarily or when the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which could affect the result of the case.[52] Unfortunately, ENRIQUEZ has failed to show the presence of any of these exceptions. The conviction of ENRIQUEZ was primarily based on the positive and categorical account of prosecution witnesses Rene de la Pea and Romeo Ladrillo. Their identification of ENRIQUEZ as the assailant was forthright and clear. We affirm the trial courts dissertation on this issue:

That the identity of the accused as the person who stabbed and killed the victim, Jessie Conlu, has been properly established by eye-witnesses Rene de la Pea and Romeo Ladrillo. The stabbing incident took place at past 3 oclock in the afternoon of October 13, 1979 in Melliza Street near Muelle Loney, Iloilo City. The two witnesses were just some four (4) to five (5) meters away from the scene when the accused, upon approaching the victim stabbed him (victim). There is no reason to doubt the identification made by them of the accused, the accused being their co-resident in Barangay Kasing-kasing, Molo, Iloilo City, having known him, for many years back, that is even as early as 1967 or 1968 and that the incident occurred in broad daylight with nothing to impede or obstruct their view. That the testimonies of these witnesses are credible and deserving of credence for they were not shown to have been motivated by any grudge, ill-will or misunderstanding in testifying against the accused. As held in People vs. Villagracia, 219 SCRA 212, in the absence of ill-will, it is hardly credible that witnesses would prevaricate and cause damnation to one who brought them no harm or injury. There is also good person (sic) to believe these witnesses to have actually seen the stabbing incident considering the fact that said incident occurred right near the immediate premises of their place of work where they have the right or supposed to be.[53]
ENRIQUEZs argument on the alleged inconsistencies in the testimony of the prosecution witnesses does not persuade us. A careful scrutiny of the transcript of stenographic notes of the testimonies of Rene de la Pea and Romeo Ladrillo shows that they gave a clear and affirmative full account of what actually transpired on the fateful day of 13 October 1979. Their separate story agree on material points, specifically on the identity of ENRIQUEZ as the culprit, the manner by which he perpetuated the crime, the motive behind the killing, and the date the crime was committed. The inconsistencies were on minor matters and were trivial and unimportant. Settled is the rule that minor inconsistencies doe not affect the credibility of a witness; on the contrary, they may be considered badges of veracity or manifestations of truthfulness on material points and they may even heighten the credibility of the witness.[54] Further, ENRIQUEZ can not make much of his claim that it was unclear from the testimony of Rene as to what exactly was he doing at the time of the occurrence of the incident. It is clear on the record that Rene was passing the basket of tomatoes to his brother Christian de la Pea, and was explicit in saying that he noticed ENRIQUEZ pass by in front of him and at a distance of about five meters ENRIQUEZ Approach and stab JESSIE.[55] Renes declaration that he was hanging around the premises has reference to the time after he had finished his work in the arrastre and not during the time of the incident. As to the failure of Rene and Romeo to report to the police authorities ENRIQUEZs identity immediately after the commission of the crime, we need only stress that such was not entirely against human experience. We are not unaware of the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case.[56] The fact that Rene and Romeo were unschooled and illiterate does not diminish the trustworthiness of their testimony. The virtue of truthfulness is not a monopoly of the old, the

rich, and the learned -- truth can come from the mouths of a child and the lips of the poor, the simple and the unlettered.[57] We find no factual basis for the claims of ENRIQUEZ that the instant case was maneuvered by his political adversaries. We approve the finding of the trial court,viz:

The insinuation that politics may have caused or prompted the witnesses to testify against him as he, being the barangay captain of Barangay Kasing-kasing, Molo, was or is the object of envy or hatred by his political opponents does not have the support of any satisfactory proof, the fact being that these witnesses were not shown to have been engaged or involved in politics and much less has it been shown that they were merely induced for a fee or promise of reward to testify against the accused.[58]
The defense of alibi interposed by ENRIQUEZ cannot stand in view of his positive testimony of Rene de la Pea and Romeo Ladrillo that he, ENRIQUEZ, was the one who stabbed and killed JESSIE. We have time and again ruled that alibi is the weakest of all defenses for it is easy to fabricate and difficult to prove; it can not prevail over the positive identification of the accused by the witnesses.[59] We are in full agreement with the trial courts finding that the killing was committed with the qualifying circumstance of treachery, hence, the crime committed is murder. There is treachery when the offender commits any of the crime against the person, employing means, methods, or forms in the execution thereof which tend directly to insure its execution, without risk to himself arising from the defense which the offended party might make.[60] For treachery to be appreciated two conditions must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted.[61] In this case, the foregoing requirements of treachery was adequately established and we adopt the trial courts finding thereon, to wit:

The fact as testified to by the witnesses shows that the assault was unprovoked. There was no exchange of words between the victim and the accused at anytime before the actual attack, that the accused, upon approaching and coming near his unarmed victim, immediately stabbed him with something covered by a white cloth, something which turned out to be a knife, which caused the victim to fall, vomit blood and almost instantaneous death. There is no question that the attack although frontal, was unexpected and sudden, and that the victim was unarmed.
xxx

The unexpectedness (sic) and suddenness of the attack coupled by the fact that the accused concealed his weapon with a cloth as he approached and until he finally delivered a fatal stab blow on the thoraco-abdominal region of his victim which did not only penetrate and perforate the thoracic cavity and mid-anterior pericardial sac but the mid-upper 3rd of the right ventricle of the heart as well clearly characterize the

assault as treacherous. This manner of assault positively points to the fact that the accused consciously and deliberately employed a form of attack to ensure the consummation of his objective with certainty.[62]
As regards evident premeditation, the following requisites must be proved before it may be appreciated: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his act.[63] While the first and third requisites may have been proven by the fact that a few days prior to the incident, ENRIQUEZ told Rene and Romeo that he wanted to kill JESSIE because of the latters alleged illicit relationship with him, ENRIQUEZs wife, no convincing evidence was offered to prove how ENRIQUEZ planned and prepared to kill JESSIE to show that he had clung to his determination. We cannot also agree with the trial courts imposition of the death penalty. The crime was committed on 13 October 1979 at a time when the imposable penalty for murder was reclusion temporal in its maximum period to death. Since there was neither aggravating nor mitigating circumstance attending the commission of the crime, the penalty should be imposed in its medium period,[64] that is, reclusion perpetua. Besides, it was committed at the time when the imposition of the death penalty was suspended pursuant to Section 19(1) of Article III of the Constitution. The death penalty was restored by R.A. No. 7659,[65] which took effect on 31 December 1993.[66] Finally, the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable length of time.[67] We find that the constitutional right of ENRIQUEZ to a speedy trial was not impaired since the delay in the prosecution of the instant case cannot be characterized as unreasonable, vexatious and oppressive and not one without the participation or fault of the accused. Notably, the trial began only on 13 July 1995 or more than a decade after the filing of the original information on 16 November 1979. However, it was evident on the record that the accused left for Manila68 immediately after the filing of the criminal indictment presumably to evade the strong arm of the law. ENRIQUEZ was arrested only sometime in 1991 but the trial of the case was further delayed by the habeas corpus proceeding69 that he initiated. In the final analysis, ENRIQUEZ cannot attribute the delay to anyone else but himself. WHEREFORE, the decision of 8 October 1998 rendered by the Regional Trial Court of Iloilo City, Branch 25, in Criminal Case No. 11858 finding accused-appellant TOMAS ENRIQUEZ guilty beyond reasonable doubt as principal of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, is hereby AFFIRMED with the modification that the penalty is reduced from death to reclusion perpetua. The rest of the judgment stands. No pronouncement as to costs. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

Pardo, J., on sick leave.

FIRST DIVISION

[G.R. No. 136304. January 25, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, RAMA, accused-appellant. DECISION

PUNO, J.:

vs. ROGER

The birth of the New Year in 1998 saw the loss of Roger and Eufemia Cabiguin's infant child, Joyce Ann Cabiguin. For her loss, an information was filed against the accused Roger Rama, viz:

"That on or about the 1st day of January, 1998, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ROGER RAMA, did then and there, wilfully, unlawfully and feloniously kidnap JOYCE ANN CABIGUIN, a minor, one (1) year and six (6) months old. Contrary to Article 267, par. 4 of the Revised Penal Code."[1]
The prosecution's story was gathered mainly from the testimony of five-year old Roxanne Cabiguin, a cousin of Joyce Ann. On January 1, 1998, Roxanne, her sister Rose Ann, Mama Weng, Uncle Dony, grandmother Diana, Joyce Ann and the latter's younger brother Pogi were at the Dagupan public plaza. Roxanne played with her Uncle Dony, Rose Ann, and Joyce Ann at the plaza's stage while her Mama Weng sat at the side of the stage, feeding Pogi. Mama Diana went to a store to buy some food. At that time, the accused Rama and another man were also at the plaza. Rama called Roxanne and told her that if she would bring the beautiful girl (referring to Joyce Ann) to him, he would give Roxanne a biscuit. Rama gave her one biscuit. She ate it. She then carried Joyce Ann to the accused Rama who ran away with little Joyce Ann. Roxanne told her Mama Weng and Mama Diana that Joyce Ann was taken by a man. They looked for Joyce Ann and the man but they were nowhere to be found. During her testimony, Roxanne pointed to the accused Rama as the man who took away Joyce Ann.[2] Roxanne's testimony was corroborated by Pierre Torio. On January 1, 1998, he was with his cousin and niece at the Dagupan City plaza from about 1:15 p.m. to 4:30 p.m. Facing the stage, they sat on a bench to its right. They were about nine to ten meters away from the stage. There were about seven children playing on the stage. At about 1:30 p.m. to 2:00 p.m., the accused Rama entered the plaza and sat about five to six meters away from them. He was with two other

men and a pregnant woman. He entered the plaza playground where many kids were playing. He stared at the children and looked confused, then came out seemingly not knowing what to do, and approached the stage. But before he could reach the stage, he returned to the playground. Subsequently, at about 2:45 p.m., a tall man asked Torio if he saw the missing Joyce Ann. He replied that he saw the accused Rama acting suspiciously in the plaza. He did not see though whether Rama took Joyce Ann. By this time, Rama was nowhere in sight.[3] On January 7, 1998, Torio's cousin called him up to go to the Dagupan City police station because the person who took Joyce Ann was there. He was asked to identify the man he saw acting suspiciously at the playground. The police pointed successively to the men sitting at the police station and each time asked Torio if that was the suspicious-acting man. He replied in the negative. When the police pointed the accused Rama, Torio confirmed that he was the man acting suspiciously. He gave a sworn statement narrating what he saw on January 1, 1998 at the Dagupan plaza playground. On the witness stand, Torio pointed to the accused Rama as the man who acted suspiciously at the playground. He affirmed that he could not be mistaken because the accused Rama sat only about five to six meters away from him.[4] Diana Laviste Cabiguin, paternal grandmother of Joyce Ann, also testified. Along with Joyce Ann and other relatives, she went to the Dagupan plaza on January 1, 1998. At the time Joyce Ann disappeared, Diana went to McDonald's to buy some snacks. When she went back to her relatives, Joyce Ann was already gone. One of the children playing in the plaza playground, Bryan Ocampo, informed Diana's group that Joyce Anne was taken by a man. They searched in vain for the missing Joyce Ann. Two days later, or on January 3, 1998, after receiving tips from the townspeople, Diana went to Binmaley, Pangasinan, the vicinity where the accused lived. She was with a certain Elvira Sebastian, some policemen, and three children at the plaza playing with Joyce Ann on January 1, 1998, namely: thirteen-year old Bryan Ocampo, eleven-year old Benjamin Sarmiento, and Jesus Ulanday. When the group reached the house of the accused Rama, they found the latter and his wife and their children sleeping. They were permitted by the accused Rama to examine the premises of his house and to look for the missing Joyce Anne. Their search was fruitless but all three kids pointed to the accused Rama as the kidnapper. Jesus even urinated upon seeing the accused Rama because the latter spanked him when he (Jesus) ran after Rama as the latter took away Joyce Ann. Rama threatened Jesus not to follow him or else he (Rama) would throw a stone at him. On January 5 or 6, 1998, Diana, Bryan, Benjamin, and Jesus went again to Binmaley. All three children pointed again to the accused Rama as the man who took Joyce Anne. The three children did not, however, take the witness stand. Bryan's parents were at first willing to let Bryan testify, but after Rama's wife talked to them, they changed their mind. Benjamin's father was at first also willing to let his child testify but later on had a change of heart for fear of their safety.[5] Elvira Sebastian corroborated Diana Laviste's testimony. She testified that on the night of January 1, 1998, Diana, along with some policemen and three children who witnessed the taking of Joyce Ann, one of whom was a certain Bryan, went to her house because the first suspect was her uncle, Eduardo Sebastian. The children were asked if Eduardo was the kidnapper, but they answered in the negative. Diana asked Elvira's assistance to find the kidnapper. The following day, or on January 2, 1998, at about 9:00 a.m., Diana went back to Elvira's house. Elvira, Diana, Bryan, Benjamin, and Jesus asked around about the missing Joyce

Anne. Elvira learned from the former manager of the fish business where the accused Rama worked that there were other instances of kidnapping in the market place. She (the manager) informed Elvira that on January 1, 1998, she saw the accused Rama with a child. The manager told Elvira that the latter might be familiar with Rama's face because he was pushing carts of fish for a living and these cart pushers would usually buy doughnuts from the store of Elvira's father. Elvira stayed behind to wait for the accused Rama at the manager's store. The rest of Diana's group went to the National Bureau of Investigation. After an hour's wait in vain, Elvira left. She returned the following day, but again, the accused Rama did not show up. On January 3, 1998, Elvira went with Diana, Bryan, Benjamin, Jesus, Roger (father of Joyce Ann), and some policemen to Rama's house. The children pointed to the accused Rama as the culprit. One of the children whom the accused Rama spanked at the park during the taking of Joyce Ann even urinated out of fright when he saw the accused. Despite the identification made by the children, the policemen did not arrest Rama. This prompted Diana to go to the Philippine National Police - Criminal Investigation and Detection Group (PNP-CIDG) in Dagupan City for the arrest of the accused Rama. The following day, she and the children went to the Magsaysay market beside Mele's restaurant and saw again the accused Rama. The children again pointed to the accused as the man behind Joyce Ann's taking. Rama threatened them not to implicate him or he would kill them. The group left the place. She executed an affidavit narrating the foregoing incidents.[6] SPO3 Teofilo Ubando, investigator at the PNP-CIDG in Dagupan City, also took the witness stand. He testified that on January 6, 1998, Roger and his wife, Eufemia, went to the CIDG office. They reported to Ubando that the accused Rama kidnapped their daughter, Joyce Ann. Bryan and Benjamin who witnessed the accused Rama take Joyce Ann, also went to the CIDG office. The two children informed Ubando where the accused Rama lived. Eufemia, Ubando, Bryan, Benjamin, and other policemen went to Rama's house in Binmaley, Pangasinan, while Roger was left in the office. They brought with them a letter signed by Police Senior Inspector Rodolfo S. Azurin, Jr., Deputy Provincial Field Officer, inviting the accused Rama to immediately appear before the CIDG in relation to the kidnapping of Joyce Ann.[7] Upon reaching Rama's house, the group did not find him there. His wife told them that he was in Mele's restaurant. Together with Rama's wife, the group proceeded to Mele's restaurant. At about 4:30 p.m., Rama arrived. The police presented to him the letter signed by Azurin and invited him to go to their office. The accused Rama obliged. His wife went with him. When the group arrived in the CIDG office, Rama signed the letter inviting him to the police station. The following day, or on January 7, 1998, the police presented the accused Rama and four other persons from their office in a police line-up. Benjamin and Bryan, and three other witnesses, Rose Anne Cabiguin, Jesus Cabiguin, and Andrew Cabiguin, all pointed to the accused Rama as the man who took Joyce Ann. Pictures were taken of Benjamin and Bryan, and Jesus Ulanday pointing to the accused Rama as the man who took away Joyce Ann.[8] Sgt. Moyano and Sgt. Niro took the affidavits of Benjamin and Bryan. Roger Cabiguin's statement was also taken.[9] The accused Rama testified. From 1975 up to 1998, he was a cart pusher at the Magsaysay market in Dagupan City. He would go to work at about 6:30 p.m. and go home at about 9:00 the following morning. Fish vendors would usually hire him to carry their goods in his cart. On January 1, 1998, he was at home in Binmaley, Pangasinan, the whole day. He fetched water,

helped his wife wash clothes, and took care of his youngest daughter. At 1:00 p.m. to 5:00 p.m., he went to sleep. He did not go to work in the evening as his customers usually did not sell fish on New Year's Day. The next day, he again stayed in the house. At 6:30 in the evening, he went to work and went home the following morning at 9:00. On January 3, 1998, he went to work as usual. Upon arriving home the next morning, his wife told him that at about 11:00 p.m. the previous night, some policemen went to their house looking for something. On January 4, 1998, at about 11:00 in the evening, two policemen went to his house looking for a baby. They were with an old woman whom Rama later on identified in the courtroom as Diana Laviste, a man, Bryan and Benjamin. He let the group in. They did not find the baby they were looking for. The two children stated that he (Rama) was not the man who took the missing Joyce Ann. On January 5, 1998, Rama again went to work until 9:00 a.m. He arrived home at about 10:30 a.m. and stayed there until 12:00 noon. He went to the city and watched a movie from 1:00 p.m. to 4:00 p.m. He then proceeded to the Magsaysay market to get his cart. Thereupon, a CIDG member approached him and asked him to go with his group because they were going to ask him some questions. He was asked where he brought the missing Joyce Ann, but he denied taking the child. When he arrived at the CIDG office in Tapuac, the CIDG members asked him to join a police line-up. Bryan and Benjamin were then brought out and they pointed to the accused and said "It's him." At the latter part of his testimony, however, the accused Rama testified that the children said, "It's not him." When shown Exhibit B-1, a picture of two children pointing to him, the accused confirmed that the two children were Bryan and Benjamin. Another unidentified child pointed to the accused Rama. Roxanne who later on testified in court also pointed to him at the line-up. These children were not assisted when they identified him at the police line-up. After investigation, Rama was asked to stay in the CIDG detachment from January 6 to 9, 1998, then he was transferred to Bonuan, then he was again brought back to the CIDG office. Rama testified that he did not know of any reason why Diana Laviste and Roger Cabiguin filed a case against him, why Bryan and Benjamin identified him as the culprit during the police line-up, and why Roxanne identified him in court as the man who took Joyce Ann. He also did not have any grudge against Pierre Torio.[10] Violeta Cayabyab also testified in defense of the accused Rama. She was Rama's neighbor in Binmaley, Pangasinan. She testified that on January 1, 1998, the accused Rama was in his house the whole day. On cross-examination, however, she testified that as a vegetable vendor, she would leave Binmaley at dawn and purchase her vegetables in Dagupan at about 3:00 a.m everyday. She would then sell her vegetables in the morning and go home at about 11:00 a.m. She also testified that the accused Rama's family and her family are good neighbors. They consider each other as part of the family. Between the accused Rama and the private complainant, she admitted that she would side with Rama.[11] Edilberto Aguada took the witness stand. He is a canteen owner and the person from whom the accused Rama had been getting his cart for two years. On January 1, 1998, the accused Rama reported for work in the evening. He also worked in the evening of January 2, 1998. On cross-examination, however, he admitted that he did not see the accused Rama until evening on January 1, 1998. The same was true of January 2, 1998. He admitted that he did not know what the accused Rama did on those days.[12] SPO4 Reynaldo de Vera of the Dagupan City Police Station also testified. On January 1, 1998, Diana Laviste reported the kidnapping of Joyce Ann Cabiguin. On January 4, 1998, Diana,

along with Roger, went back to the police station and informed them that the children who were witnesses to the kidnapping of Joyce Ann lived in Pantal. De Vera, SPO2 Cesar Calimag, Diana, and Roger went to Pantal to pick up the children. The group then went to the house of the accused Rama in Gayaman, Binmaley. When they saw the accused Rama in his house and the two children were asked if he was the man who took away Joyce Ann, they answered that he was not the one. The police asked the children to further examine the face of the accused Rama, but the children confirmed that it was not him. The group then left the house and proceeded back to the police station. De Vera did not make any written record of the identification process. The police likewise no longer followed up the case of the missing Joyce Ann.[13] The trial court gave credence to the prosecution's story. It convicted the accused Rama, viz:

"WHEREFORE, the accused is hereby found guilty beyond reasonable doubt of the offense charged as defined and penalized by Article 267 of the Revised Penal Code, as amended by R.A. No. 7659, and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the parents of the victim the amount of P100,000.00 as moral damages and another amount of P20,000.00 as temperate or moderate damages. Considering that reclusion perpetua shall be from twenty years and one day to forty years (Art. 27, RA 7659), the period within which he has been placed under detention shall be deducted from his sentence."[14]
Hence this appeal by the accused Rama on the following grounds:
I.

THE TRIAL COURT GRAVELY ERRED IN NOT DISMISSING THE CASE DESPITE SEVERAL INSTANCES WHEREIN THE PROSECUTION WAS NOT ABLE TO PRESENT OR CONTINUE THE PRESENTATION OF ITS EVIDENCE.
II.

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING.
We first deal with the issue of the prosecution's repeated failure to present evidence. On April 20, 1998, due to the absence of the public prosecutor, the lower court issued an order resetting the hearing to April 30 and May 4, 1998 with a warning to the prosecution that if it fails to present its witness without any reason, the case would be dismissed.[15] The hearing scheduled on April 30, 1998, was, however, cancelled because the judge was on leave. On May 4, 1998, the prosecution witness did not appear. The court gave the prosecution another chance to present its witnesses on May 12, 1998 with a second warning that should the prosecution again fail to do so, the case would be dismissed. On May 12, 1998, the public prosecutor handling the instant case was absent due to sickness. Another public prosecutor appeared before the court and informed the judge that she was not certain whether the private complainant and other witnesses were notified of the hearing. The substitute prosecutor prayed for a three-day postponement in order to contact the private complainant and promised that should the prosecution fail to present

witnesses at such time, the prosecution would not object to a provisional dismissal of the case. Against the vehement objection of the defense, the court granted the prosecution a last chance to present its witnesses on May 15, 1998 and gave a final warning that should the prosecution fail to do so, the case would be dismissed. On May 15, 1998, the prosecution presented its witness. The defense contends that the delays caused by the prosecution violated his right to speedy trial. The court therefore committed grave abuse of discretion in not dismissing the instant case. The accused's contention is bereft of merit. While the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy administration of justice, we cannot deprive the State of a reasonable opportunity to fairly prosecute criminals. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial.[16] The prosecution failed to justify the absence of the prosecutor from the hearing on April 20, 1998. Nor was it able to offer an explanation for the failure of the witness to appear on May 4, 1998. On May 12, 1998, the public prosecutor was again absent due to sickness and it was not ascertained whether the prosecution witness was notified of the scheduled hearing. Three days thenceforth, however, the prosecution presented its witness. In determining whether the accused's right to speedy trial was violated, the delay demonstrated above should be considered in view of the entirety of the proceedings. The following provisions of the Revised Rules of Criminal Procedure (the "Revised Rules") which became effective last December 1, 2000, are apropos:

"Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following rights: (h) To have speedy, impartial and public trial." "Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable length of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court."
The Information for the instant case was filed on February 3, 1998. The prosecution presented its witnesses from March 4, 1998 to May 26, 1998. The defense, on the other hand, presented its witnesses from August 4, 1998 to September 15, 1998. The trial court rendered its decision on September 28, 1998. We can compute from the above dates that the trial was completed in 195 days or from March 4, 1998 to September 15, 1998. However, while the Revised Rules provide that the entire trial period shall not exceed one hundred eighty (180) days, delays caused by the accused himself or his counsel should logically be excluded from this period. The records show that on March 4, 1998, Atty. Abalos replaced Atty. Taminaya as

counsel for the accused. Atty. Abalos asked for a resetting of the case to March 27, 1998 to allow him to go over the transcript of stenographic notes of the testimony of the prosecution witness and conduct cross-examination.[17] On March 27, 1998, Atty. Abalos was absent and so the hearing was reset to March 30, 1998.[18] On April 2, 1998, Atty. Abalos was appointed as public prosecutor, thus leaving the accused Rama without counsel. Atty. Surot was appointed as the accused's new counsel. To give Atty. Surot a chance to go over the records of the case, the hearing was reset to April 14, 1998.[19] All in all, therefore, the delay caused by the accused or his counsel was a period of thirty-eight (38) days. This period should be deducted from the 195-day period within which the trial was completed. Thus, to be exact, the entire trial was completed in one hundred fifty-seven (157) days, well within the 180-day period provided by the Revised Rules. This is not an unreasonable length of time that violates the right of the accused to speedy trial. The trial court therefore did not err in not dismissing the case on the ground of violation of the accused's right to speedy trial. We come now to the second issue raised by the defense. The accused Rama faults the trial court for finding him guilty beyond reasonable doubt despite the insufficiency of evidence. First, he makes much of the fact that the prosecution did not present Bryan and Benjamin, the two children who allegedly saw the accused Rama take Joyce Ann. This fact, however, does not militate against the story of the prosecution. It is well-settled that the nonpresentation of certain witnesses by the prosecution is not a plausible defense and the matter of choosing witnesses to present lies in the sound discretion of the prosecutor handling the case.[20] Besides, the prosecution adequately explained that the parents of the two children, Bryan and Benjamin, reneged on their willingness to have their children testify after the wife of the accused talked to them for fear of their safety. Likewise, as correctly pointed out in the appellee's brief, nothing could have prevented the defense from presenting Bryan and Benjamin as its own witnesses in order to discredit the testimony of Roxanne, the lone eyewitness presented by the prosecution. The presumption of suppressed evidence does not apply when the same is equally accessible or available to the defense.[21] Secondly, the accused points out that since Bryan and Benjamin were not presented as prosecution witnesses, Diana Laviste's claim that these children pointed to the accused as the man who took away Joyce Ann does not bear any weight in evidence. This therefore leaves only the testimony of Roxanne as the basis for the prosecution's identification of the accused Rama as the culprit. The defense contends, however, that Roxanne's testimony, coming from the mouth of a five-year old, does not deserve credit because she could not answer many questions and appeared to have been coached by her grandmother, Diana. We cannot subscribe to the accused's contention. The Rules of Evidence provide in Rule 130, Secs. 20 and 21:

"Sec. 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Sec. 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be witnesses:

xxx

(b) Children whose mental maturity is such as to render them incapable pf perceiving the facts respecting which they are examined and relating them truthfully."
In Dulla v. Court of Appeals and Andrea Ortega,[22] the Court, citing the above provisions, gave credence to the testimony of a three-year old witness. It held:

"It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States v. Buncad, this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point says: 'But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.' (Wigmore on Evidence, vol. I, p. 638) The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing, it is setted that the trial court is called upon to make such determination." (emphasis supplied)
In People v. Mendiola,[23] the Court gave credence to the testimony of the six-year old witness even if she failed to answer some questions because of her tender age. In the case at bar, while the five-year old witness, Roxanne, was not able to answer some questions such as which was her left and her right, she was straightforward in identifying the accused Rama as the culprit, viz:
"Q: You said you will tell the truth, will you tell the truth now? A: Q: A: Q: A: Yes, sir. Who is your mother? Nanay Weng, sir. Will you please point to her? My mother is not here, sir.

xxx
Q: A: Q: Do you know Joyce Ann Cabiguin? Yes, sir. Do you know where Joyce Ann is now?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

No, sir. Why, where is she now? She is not here, sir. Why? Because a man took her, sir. You said that a man took her, who is that man, if you know? Yes, sir. Will you point to her (sic)? (Witness pointed to a person, when asked, responded by the name of Roger Rama) Do you know what place or where that man took Joyce Ann? At the plaza, sir. Why were you at the plaza? Because my mother brought us for a stroll, sir.

xxx
Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: What did you see at the plaza? Stage, sir. Did you talk to that man at the stage? Yes, sir. What did he say to you, if any? He told me that I will get the beautiful girl and he will give biscuit, sir. Who is that beautiful girl? My ading (my sister), sir. Do you know the name of your ading? Joyce Ann, sir. Can you tell the Court how you carried her? (witness demonstrated how she carried her sister by extending her two hands) Is Joyce Ann already able to walk or not? Yes, sir. Where did you bring Joyce Ann? To the man, sir.

Q: That same man? A: Yes, sir.

Q: A:

What did the man do to Joyce Ann? He ran away with her, sir."[24]

On cross-examination, Roxanne remained straightforward, consistent, and candid in her testimony, viz:
"Q: When you told (sic) that the man told you that he will give you biscuit and telling (sic) you that you get Joyce Ann and bring her to him, did he give you that biscuit already before you went to Joyce Ann? A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Yes, sir. How many biscuits did he give you? One, sir. Did you give Joyce Ann a piece of the biscuit? No, sir. What did you do with the biscuit? I ate it, sir. Do you know how to distinguish colors? (no answer) Do you remember what was the man wearing at that time when he approached you? Yes, sir. What? (witness pointed again to accused Roger Rama) When this Roger Rama approached you, and upon telling you that you bring Joyce Ann to him, did you bring Joyce Ann immediately to him? Yes, sir. When you brought Joyce Ann to him, what did you do? He ran away with my sister Joyce Ann, sir."[25]

We thus find no reason to disturb the trial court's assessment of the credibility of the child witness, Roxanne. The determination of the competence and credibility of a child as a witness rests primarily with the trial judge as he had the opportunity to see the demeanor of the witness, his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on review, unless it is clear from the record that his judgment is erroneous.[26] This conclusion is in accord with the spirit and letter of the Rule on Examination of a Child Witness (the "Rule") which became effective last December 15, 2000. The following provisions are apropos:

"Section 1. Applicability of the Rule. -- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a

crime, and witnesses to crime. It shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses." (emphasis supplied) "Section 3. Construction of the Rule. -- This Rule shall be liberally construed to uphold the best interests of the child and to promote the maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused." (emphasis supplied) "Section 6. Competence. -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.
xxx

(a) Proof of necessity. -- A party seeking a competency examination must present proof of necessity of competence examination. The age of the child by itself is not a sufficient basis for a competency examination." (emphasis supplied)
Thirdly, the defense faults the trial court for relying on a single eyewitness account in convicting the accused Rama. The Court has long held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court.[27] The Rule also provides in Section 22, viz:

"Section 22. Corroboration.-- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases." (emphasis supplied)
The records of the instant case bear out the clear and straightforward manner by which Roxanne testified. The trial court thus correctly relied upon the sole testimony of Roxanne. Fourthly, as opposed to the accused's contention, motive is not essential to the conviction of the accused when he is positively identified.[28] As the lone eyewitness, Roxanne, positively identified the accused Rama, the accused's contention deserves scant consideration. In fact, what is worthy of consideration is the fact that the accused Rama himself admitted that he did not know of any motive which would urge the prosecution witnesses to falsely testify against him. The running case law is that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.[29] Finally, the accused Rama contends that the testimony of SPO4 Reynaldo de Vera of the Dagupan City Police Headquarters that Bryan and Benjamin did not point to the accused Rama as the culprit when they went to Rama's house should be given weight. Absent any motive for de

Vera to testify for the defense, he should be presumed to be telling the truth and performing his duties regularly. We do not agree. Suffice it to say that the observations stated and conclusions drawn by the trial court in its decision adequately meet this contention of the accused Rama. The trial court noted the lackadaisical manner by which de Vera handled the case of the missing Joyce Ann. He could not even remember if he recorded in the police blotter the disappearance of Joyce Ann as reported by her parents and the investigation he made when he, along with Bryan and Benjamin, went to the house of the accused. He did not even take down notes when he conducted his investigation of the accused. Nor did he follow-up the case after the investigation he conducted in the house of accused Rama. It was in fact his demeanor which prompted Joyce Ann's parents to seek the help of the CIDG in Dagupan City. In view of the positive identification made by Roxanne, the accused's defense of denial and alibi must fall. Well-settled is the rule that positive identification of the accused will prevail over the defense of denial and alibi.[30] Furthermore, for alibi to prosper, it must be shown that there was physical impossibility for the accused to have been at the scene of the crime. The defense has failed to satisfy this requirement. The trial court took judicial notice of the fact that Gayaman where the accused supposedly was at the time Joyce Ann disappeared is only about five to six kilometers away from the plaza where Joyce Ann was playing. We now deal with the penalty to be imposed. Article 267 of the Revised Penal Code provides in relevant part, viz:

"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 three days."
As of the time the instant case was decided by the trial court, Joyce Ann was still missing. Her kidnapping had far exceeded three days. The penalty of reclusion perpetua is thus meted out to the accused Rama in accordance with the above provision. Anent the award of damages, the trial court struck off the record Roger Cabiguin's testimony regarding the anguish Joyce Ann's loss caused him because he did not appear for cross-examination. There being no evidence in support of the award of moral and temperate damages, we cannot award the same.[31] IN VIEW WHEREOF, the impugned decision is AFFIRMED with the MODIFICATION that the award of moral and temperate damages is deleted. Costs against accused-appellant. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur. EN BANC [G.R. No. 131823. January 17, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISAGANI PARAISO y HUTALLA, accused-appellant. DECISION

PER CURIAM: The case before us for automatic review is a conviction for rape with homicide against appellant Isagani Paraiso y Hutalla, rendered in the judgment[i][1] of the Regional Trial Court xxx, dated September 29, 1997. Paraiso was charged in an information[ii][2] which reads as follows: That on or about the 5th day of August 1994, at xxx Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bolo, with intent to kill and taking advantage of his superior strength, did then and there willfully, unlawfully and feloniously attack, assault and hack several times with said weapon one AAA, a minor, 13 years of age, inflicting upon her fatal wounds on vital parts of her body, which directly caused her death; that on the same occasion, the said accused, with lewd design, did then and there willfully, unlawfully and feloniously have sexual intercourse with said AAA while she was already unconscious. During his arraignment on December 17, 1996, appellant, duly assisted by counsel, pleaded not guilty.[iii][3] Thereafter, trial on the merits followed. The Solicitor General, in his Brief for Plaintiff-Appellee,[iv][4] related the facts, as follows: On August 5, 1994, at around 9:00 oclock in the morning, BBB, AAAs father, was having a drinking spree with appellant and Anthony Briones in the place of a copra dealer near the school of xxx. It lasted up to 1:00 oclock in the afternoon when they decided to separate. Appellant told BBB that he had to proceed to the place of the pamanhikan which concerned his son. Appellant likewise asked BBB who were the persons in their house. BBB told appellant his children AAA and two year-old CCC will be left in their house, as the other two children will buy rice.(TSN, 5-13-97, pp. 8-10) On the same day of August 5, 1994, at around 4:00 oclock in the afternoon, Benny Reoveros was in their house at xxx when he heard the voice of a young child shouting Diyos ko po, Diyos ko po, tama na po, tama na po. He was thus impelled to proceed to the place where the shout came from. When he was already near, at a distance of about fifteen (15) meters more of less, he saw appellant Isagani Paraiso carrying a child face down, with his two hands. Benny hid himself in a shrubby place where there were several anahaw trees. The he saw appellant put down the child with her face up on the ground. The child was AAA. Benny was more or less twenty (20) meters away from the place of appellant and AAA. He saw appellant remove the shorts of AAA then raise her upper clothes and pull down his pants. Appellant then placed himself on top of AAA and raped her for about five minutes. Thereafter, appellant hacked AAA on the neck with a bolo. Because of fear, Benny ran to their house. He reported the incident to Barangay Captain Angel Roy Recilla who in turn summoned his barangay kagawad and they went to the place pointed by Benny. At the shrubby place, they found Arlene already dead. (TSN, 4-15-97, pp. 39) Dr. Manuel L. Salaveria, Municipal Health Officer of xxx conducted the post mortem examination upon the victim AAA with the finding that she was abused and the cause of death was cardio respiratory arrest due to severe internal and external hemorrhage secondary, multiple hack wounds (Exhibit B). AAA was buried in the afternoon of August 7, 1994.

Appellant relates his version of the facts, thusly:[v][5] Evidence for the defense shows that on August 5, 1994 at about 11:00 oclock in the morning, the accused had a drinking spree with the father of the deceased. It lasted until about 1:00 oclock in the afternoon. Thereafter, the accused readily went home riding his carabao. On his way, he met the brother and sister of the deceased. He asked them were they were going and the two answered that they were going to buy rice. He arrived at his house at more or less 2:30 in the afternoon. Upon reaching his place, he tied his carabao at a coconut tree. Since he was under the influence of liquor at that time and feeling sleepy, he immediately went into bed. At that time, his sister Florinda was with him. At around 3:00 oclock of the same afternoon, Letecia Buizon, cousin of the accused dropped by the latters house in order to ask for bamboo poles to be used in the flooring of her house. Finding that the accused was sleeping, she went out of the house and got 8 pieces of bamboo poles, then returned to the house of the accused to inform the latter that she already got the bamboo poles. However, upon seeing that the accused was still sleeping, she just went home at xxx. xxx. The trial judge evaluated the credibility of the witnesses and their testimonies, viz.:[vi][6] As shown by the records, witness Reoveros, at times, hedged and failed to answer some questions; and gave inconsistent statements, particularly when asked about distances and the four (4) cardinal directions, viz: (a) distance of his house to house of victim which he estimated to be 50 meters, more or less, if about of the distance from this Court to railroad crossing (TSN., April 7, 1997, pp. 3-5); (b) time consumed by the travel from the place of barangay captain to the place of victim which he stated is more or less 1 hour (TSN., pp. 14-15, supra); (c) failed to answer when asked three (3) times if he was definite that on the night of August 5, 1994, he did not inform the barangay captain that it was Isagani Paraiso who raped and killed AAA; and (d) his errors and inconsistencies in his rough sketch (Exh. 1). He candidly admitted his nonfamiliarity with the four (4) cardinal directions due to his lack of education and that what he knew is going to Ilaya or Ibaba. (TSN., 29, 1997). These enumerated inconsistencies in the declarations of the eyewitness Benny Reoveros cannot destroy the totality of his testimony. These discrepancies do not negate the main thrust of his testimony that he saw the accused raped and hacked the victim on the date and time in question. A truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and treachery of human memory. Thus, we have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy, the credibility of a witness, especially of witnesses to crimes shocking to conscience and numbing to senses (People vs. Paule, G.R. Nos. 118168-70, September 11, 1996), as in this case at bar. xxx xxx xxx

The most important thing is that the eyewitness Benny Reoveros, on the witness stand, was firm, spontaneous and categorical in his declaration that it was accused Isagani Paraiso whom he saw that afternoon carrying the victim, face down and laid her on the ground, face up; then lowered her shorts and panty, pushed up her blouse and raped her. Thereafter, accused hacked her on the neck with his bolo. Reoveros stood by his declaration, unshaken throughout the entire trial, and never showed any hesitation in his identification of accused. His positive identification is

unerring. He knows accused who is his uncle by affinity because the wife of accused and his mother are sisters. Moreover, nowhere in the records does it show that said eyewitness was impelled by improper motives to impute such false and serious charges. (People vs. Trilles, 254 SCRA 641). Even accused admitted, on record, that witness Reoveros, a nephew of his wife, has a very high respect from him, xxx. xxx xxx xxx

xxx As witness Reoveros succinctly stated, he was bothered by his conscience for what accuse did to the child. Thus, despite his relationship to accused, he had to come forward and reveal what he saw. This Court understands the failure of the witness Reoveros to immediately report the incident and reveal the identity of the accused after that startling and shocking occurrence. More so, when he is related by affinity to the perpetrator of the crime, as this makes it all the more traumatic. xxx xxx xxx xxx

Furthermore, Reoveros version of the incident is supported by the physical evidence of the case, the Post-Mortem Examination (Exh. B, B-1 to B-3), showing that the victim, AAA sustained multiple hack wounds and her internal examination revealed the following: vagina admits one finger with ease. On opening up the introitus there is perineal laceration and minute hemorrhages at 3 oclock and 9 oclock positions. Hymen ruptured. Patient: abused. xxx xxx xxx

Finally, accuseds defense of alibi crumbles in the face of the positive identification of the accused as the perpetrator of the crime (People vs. Ferrer, 255 SCRA 19). Positive identification was made by eyewitness Benny Reoveros, his nephew by affinity. Reoveros could not, therefore, have been mistaken as to his identity. The doctrine constantly upheld by this Court is that alibi and denial cannot prevail over the positive identification of the accused as the perpetrator of the crime. In addition thereto, accused has failed to establish that it was physically impossible for him to have been at the crime scene when it happened (People vs. Alimon, 257 SCRA 661). And it is well-settled that the testimony of a single eyewitness is sufficient to support a conviction so long as such testimony is found to be clear and straight-forward and worthy of credence by the trial court (People vs. De Roxas, 241 SCRA 369). With its above findings, the lower court concluded that it was fully convinced and morally certain that it was the accused Isagani Paraiso who raped and killed the victim AAA. Thus, the penalty of death was imposed, in accordance with article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659. The dispositive portion of the Judgemnt dated September 29, 1997, reads: WHEREFORE, finding the accused Isagani Paraiso y Hutalla guilty beyond reasonable doubt of the crime of rape with Homicide, he is hereby sentenced to suffer the penalty of death, with its accessory penalties under Art. 40 of the Revised Penal Code, and to pay the Heirs of the deceased AAA the following: (a) P150,000.00 for actual and moral damages; and (b) P50,000.00 indemnity for death, without subsidiary imprisonment in case of insolvency, and to pay the costs.

Pursuant to Sec. 10 of Rule 122 of the Revised Rules of Court, as amended, let the whole records of this case be forwarded to the Supreme Court for automatic review and judgment. In his Brief,[vii][7] accused-appellant makes a single assignment of error, as follows: The Court a quo gravely erred in finding that the guilt of the accused for the crime charged has been proven beyond reasonable doubt. To support his plea for acquittal, appellant points to alleged flaws in the prosecution evidence: (1) the delay of the eyewitness in identifying the appellant as the culprit; (2) the eyewitness false statement during direct examination that appellant was his blood-relative while, in truth, they are only related by affinity; and (3) the improbability of the commission of such a crime in broad daylight and within hearing distance of neighboring houses. These circumstances, appellant avers, amount to a failure of the prosecution to meet the quantum of evidence required to overcome his innocence. As to the first alleged flaw, jurisprudence is replete with rulings that delay in revealing the identity of the perpetrator of the crime will not impair the credibility of the witness, if such delay is sufficiently explained.[viii][8] It is not uncommon for witnesses to the commission of crimes to show reluctance in volunteering information thereon and getting involved in criminal investigations.[ix][9] This is especially true when family members are the assailants.[x][10] In this case, the lone eyewitness, Benny Reoveros, is related by affinity to accused-appellant, the latters wife being the sister of Bennys mother. Appellant himself admitted that he was highly respected by the eyewitness[xi][11] and knows no reason why the latter would testify against him.[xii][12] Indeed, the defense showed no reason why Reoveros would falsely implicate Paraiso in a despicable and grave offense as rape with homicide. As the Solicitor General correctly cites, where there is no evidence and nothing indicates that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.[xiii][13] Absent a corrupt intent, Reoveros close relationship to and respect for appellant sufficiently explain his delay in identifying the latter as the wrongdoer. Nevertheless, the Court carefully examined the lengthy testimony of Benny Reoveros. We find the meat of his testimony, as to how the crime was committed and by whom, to be clear, positive and unequivocal, as follows: PROSECUTOR MAGNO: Q Now, at around four oclock in the afternoon on August 5, 1994, do you remember where were you? A Q A Yes, sir. Where were you then? I was in our house, sir.

Q And where is your house located insofar as the barangay, municipality and province are concerned?

A Q A

xxx, sir. And what were doing, if any, on that precise time, date and place? I was making something where our stove will be placed, sir.

Q And while you were making the patungan of the stove at around four oclock in the afternoon on August 5, 1994, could you remember of any unusual incident that happened? A Q A Q A Q A Q A There was, sir. And what was that unusual incident you are referring to? I heard somebody shouting, sir. And what was that shout that you heard? He was shouting Diyos ko po, Diyos ko po, tama na po, tama na po. And from what place were that shout you heard came from? From the house of BBB, sir. And how far is that house of BBB from your house? More or less fifty (50) meters away, sir.

Q When you heard the shout coming from the house of BBB, what are those particular words that you heard? A He was shouting Diyos ko po, Diyos ko po, tama na po, tama na po.

Q And from the moment you heard that shout Diyos ko po, Diyos ko po, tama na po, tama na po, is that coming from a man or a woman? A Q That is the voice of a woman, sir. That voice that you heard come from and old woman or a young woman?

ATTY. BONIFACIO: We will object, Your Honor. COURT: Sustained PROSECUTOR MAGNO: Q Now and the moment that you heard the shout Diyos ko po, Diyos ko po, tama na po, tama na po, what did you do if you did any? A And because of the shout of that young child, I could not avoid going to that place, sir.

Q And you mean to convey before this Court that you went to that place where the shout came from? A Q A Q A Q A Q A Q A Yes, sir. Now and what happened after you went to the house where the shout came from? When I was already near, I saw isagani Paraiso, sir. And this Isagani Paraiso is the uncle and accused in this case? Yes, sir. And what was the position of Isagani Paraiso when you saw him? I saw that he was carrying the child AAA, sir. And who is this AAA in relation to the owner of the house BBB? Father, sir, parent. and what was the position of AAA when she was carried by Isagani Paraiso? She was face down carried by the two hands of Isagani Paraiso, sir.

INTERPRETER: Witness demonstrated how AAA was carried by the two hands of Isagani Paraiso. PROSECUTOR MAGNO: Q Now, for how long did you look at this Isagani Paraiso and AAA from the time that you saw Isagani Paraiso for the first time? A More or less one (1) minute, sir.

Q And how far were you from Isagani Paraiso and AAA to the place where you were standing at that moment where you were? A Q A sir. Q A Q A More or less fifteen (15) meters, sir. Now and what did you do after seeing that Isagani Paraiso was carrying AAA? What I did was I hid myself in a shrubby place where there were several anahaw trees, And after hiding yourself at the anahaw trees, what happened next, if any? I saw when this Isagani Paraiso put down this AAA with her face up, sir. And where did this AAA placed by Isagani Paraiso? On the ground, sir.

Q Now, how far is that house of BBB where you saw Isagani Paraiso and AAA up to the place where Isagani Paraiso carried AAA and placed on the ground? A More or less twenty (20) meters, sir.

Q And how far were you from the place where AAA was placed on the ground by Isagani Paraiso? A Q A Q A Q any? A Q A Q A Q A Q A More or less twenty (20) meters also, sir. And after AAA was placed on the ground by Isagani Paraiso, what happened next, if any? I saw that he removed the shorts of the child, sir. And who removed the clothes of the child? Isagani Paraiso, sir. And while Isagani Paraiso was removing the clothes of the child, what happened, next, if He raised the upper clothes of the child, sir. And after that, what happened, if any? I saw when he pulled down his pants, sir. To whom do you refer when you said he pulled down his pants? Isagani Paraiso, sir. And what happened after Isagani Paraiso pulled down his pants, if any? He placed himself on top of the child, sir. And what did Paraiso do while he was on top of the child? He already committed the rape (panghahalay), sir.

Q And while Isagani Paraiso was taking off the clothes of this child and he took off his clothes and placed himself on top of the child, what did the child do, if any? A Q The child could not anymore, sir. Why did you say that the child could not shout anymore?

ATTY. BONIFACIO: We would like to place on record that the witness took time in answering the question, Your Honor. (Question repeated to the witness).

ATTY. BONIFACIO: We would like to place on record after the question was repeated to the witness, the witness is not yet answering the question. WITNESS: A Because Isagani is on top of her, sir.

PROSECUTOR MAGNO: Q You have made mention that Isagani Paraiso committed the act of panghahalay. What do you mean when you said panghahalay? A Q A He did something bad, sir. And what is that something bad? In short, sir, he raped her ginahasa, sir.

COURT: Put the word ginahasa. PROSECUTOR MAGNO: Q And while Isagani Paraiso was on top of the child raping her, according to you, what did you do if you did anything? A Q A Q A Q any? A Q A Q A Q I could not do anything because I became afraid, sir. Now, for how long did Isagani Paraiso rape this child, AAA? Maybe, more or less, five (5) minutes, sir. And after raping this child, what followed next, if any? After he had already raped her, he hacked AAA on her neck, sir. Now and after Isagani Paraiso hacked Arlene AAA on her neck, what happened next, if Because of my fear, I ran to our house, sir. Now, when AAA was hacked by Isagani Paraiso,was AAA hit with the hack? She was hit, sir. On what part of her body was she hit? On the neck, sir. And where did this isagani Paraiso get his I withdraw that.

Q A

What kind of weapon did Isagani Paraiso use in hacking AAA? A bolo which is as long as this, sir.

INTERPRETER: Witness demonstrating a length by stretching apart his hands which, upon actual measurement, is eighteen (18) inches.[xiv][14] To recapitulate, prosecution witness Reoveros actually saw the loathsome defilement and brutal slaying of 13-year-old AAA by appellant Paraiso. In his distant house, he heard a young girls piteous cries, Diyos ko po, Diyos ko po, tama na po, tama na po, which impelled him to approach the place where the cries came from and look into what could be happening. About 15 meters from the house of his neighbor BBB, he saw his uncle, appellant Isagani Paraiso, carrying AAA, face down, to a shrubby area a few meters from the house and where he laid her on the ground. Paraiso thereafter undressed the girl, ignominiously ravished her and, after satisfying his bestial lust, fatally hacked his victims neck with his 18-inch long bolo, almost severing her head. As stated earlier, the witness had no ill motive to testify against appellant. The trial court found him to be firm, spontaneous and categorical in his declaration that it was accused Isagani Paraiso whom he saw that afternoon brutally rape and kill AAA. Reoveros stood by his declaration, unshaken throughout the entire trial, and never showed any hesitation in his identification of accused. His positive identification is unerring, the judge observed. Axiomatic is the rule that factual findings of trial courts are accorded the highest respect and are generally not disturbed by the appellate court, unless they are found to be clearly arbitrary or unfounded, or some substantial fact or circumstance that could materially affect the disposition of the case was overlooked, misunderstood or misinterpreted.[xv][15] This rule is founded on the fact that the trial judge has the unique opportunity to personally observe the witnesses and to note their demeanor, conduct and attitude on the witness stand, which are significant factors in evaluating their honesty, sincerity and credibility. Through its direct observations in the entire proceedings, the judge can be expected to reasonably determine whose testimony to accept and which witness to disbelieve.[xvi][16] On the other hand, the reviewing magistrate has none of the advantages peculiar to the trial judges position, and could rely only on the cold records of the case and on the judges discretion.[xvii][17] In the present case, we find no reason to deviate from these rules. The alleged inconsistencies and false averments of the principal prosecution witness are too trivial and inconsequential to merit consideration by the Court. The supposed variances in Reoveros testimony refer merely to minor collateral circumstances -- such as distances between and location, relative to the four cardinal directions, of his and his neighbors houses; when exactly and to whom he first revealed the identity of the assailant; and who first saw the victim on the night he reported the incident to barangay officials. Time-honored is the doctrine that discrepancies referring only to minor details and collateral matters do not affect the veracity of the witness declarations.[xviii][18]In fact, they even indicate truthfulness and erase any suspicion of rehearsed testimony, [xix][19] rather than impair

the witness credibility. Indeed, errorless testimonies cannot be expected especially from a witness recounting the sordid details of a highly despicable and gory crime.[xx][20] Moreover, the witness admittedly lacked formal education, not having been able to finish even the fourth elementary grade.[xxi][21] Several times, he could not immediately answer questions propounded to him because he could not understand them. He was not even cognizant of the four cardinal directions. Slight variations in his testimony are, thus, not unexpected; and should be disregarded without diminishing his credibility.[xxii][22] Appellant desperately assails the credibility of this lone eyewitness by averring that he falsely claimed to be a blood relative of appellant, whereas they are in truth only related by affinity. In this connection, Reoveros clearly stated during his direct examination that Isagani Paraisos "wife is the sister of my mother."[xxiii][23] In any case, whether they were related by blood or by affinity is hardly of significance. As to appellants assertion that the commission of such crime during broad daylight was highly improbable, it has been oft said that lust is no respecter of time and place. Rape can be committed in places where people congregate, in parks, alongside the road, within school premises, inside a house where there are other occupants, and even in the same room where there are other members of the family who are sleeping.[xxiv][24] How much more in a remote hilly place where houses are distantly situated, such as in the instant case. While the defense tried to establish through prosecution eyewitness Reoveros that there were other houses near the victims, it has not shown that there were occupants present during the perpetration of the crime who could have witnessed or perceived it, but failed to. Nothing on record contradicts the eyewitness testimony as to the commission of the crime by appellant during that fateful hour and day at the place where the victim was found. Appellant merely claims that he was sleeping in his house some 2,000 meters away from 2:30 p.m. to 6:00 p.m. during that ill-fated afternoon of AAAs rape-slaying. His cousin, Letecia Buizon, corroborates his tale. She supposedly arrived at appellants house about 3:00 p.m. and saw him sleeping. When she left at 5:00 p.m., appellant was still sleeping. In the interval, however, she went out to gather bamboo trees. The defense of alibi, as a rule, is considered with suspicion and is always received with caution, not only because it is inherently weak and unreliable but also because it can be easily fabricated. It cannot prevail over the positive identification of the appellant by a credible eyewitness who has no ill motive to testify falsely. For such defense to prosper, it must be convincing enough to preclude any doubt on the physical impossibility of the presence of the accused at the locus criminis at the time of the incident.[xxv][25] But, according to appellant, his house was merely about two thousand meters from that of the BBBs. Even by foot, such distance is not impossible to trek in less than an hour.[xxvi][26] By the eyewitness account, the victims unlawful defilement took no more than five minutes and, immediately thereafter, appellant savagely hacked her neck. All these could, therefore, have happened when defense witness Buizon was out gathering bamboo trees. She simply presumed that appellant was asleep all throughout.

Moreover, given the positive identification of appellant by a credible eyewitness -- his own nephew -- as the rapist-killer, his defense of alibi must necessarily fail. In addition, the testimony of the eyewitness is fully corroborated by the post mortem examination report[xxvii][27] of municipal health officer Manuel L. Salaveria, which stated as follows: FINDINGS 1. Wound, incised, both edges sharp, measuring 7 inches x 2 inches with a depth of 5 inches from the left posterior ear extending up to the right posterior ear, occipital area. Head with evisceration of the brain tissue. 2. Wound, incised, both edges sharp, measuring 4.5 inches x 1.5 inches with a depth of 1.5 inches, nape. 3. 4. 5. Wound, incised, 1 inch x 0.5 inch left parieto-occipital area. Wound, incised, 1.5 inch x 1 inch right parieto-occipital area. Hematoma, 2.5 inches 0.5 inch Right scapular area.

6. Wound, incised, 4.5 inches x 2.5 inches with a depth of 4 inches, anterior neck severing the esophagus. 7. 8. 9. 10. Wound, lacerated, 3 inches x 2 inches left deltoid area. Wound, incised, 1.5 inch x 0.5 inch left big finger. Wound, incised, 1 inch x 0.5 inch left index finger. Wound, incised, 1.5 inch x 0.5 inch Right middle finger.

Internal examination: Normal external genitalia, vagina admits one finger with ease. On opening up the introitus there is perineal lacerations and minute hemorrhages at 3 oclock and 9 oclock positions. Hymen ruptured. Patient: Abused Cause of Death: Cardio Respiratory Arrest due to severe Internal and External Hemorrhage secondary multiple Hack Wounds. With all the foregoing circumstances, the prosecution has clearly adduced the requisite quantum of proof to find appellant guilty beyond reasonable doubt of raping and killing AAA. Additionally, appellant offered thirty thousand pesos (P30,000.00) to the victims father as settlement of the case and so that he could be released from confinement.[xxviii][28] Such offer can only be taken to mean an admission of guilt. In criminal cases, except those involving criminal negligence or those allowed by law to be amicably settled or compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.[xxix][29] Under Article 335[xxx][30] of the Revised Penal Code, as amended, [w]hen by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. Being a single

indivisible penalty, death is mandatorily imposed in the light of Article 47 of the Revised penal Code regardless of the attendance of any mitigating or aggravating circumstance in the commission of the crime.[xxxi][31] Four (4) Justices of the Court however continue to maintain the unconstitutionality of R.A. No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. As to civil indemnity ex delicto, the Court ruled in People v. Robles[xxxii][32] that in rape with homicide, in which the penalty imposed is death, the amount should be increased to P100,000.00. With respect to damages, the general rule is that the alleged pecuniary loss and the moral and mental suffering must be established by factual evidence before actual and moral damages, respectively, may be awarded.[xxxiii][33] As an exception, in people vs. Prades,[xxxiv][34] we held that moral damages may be awarded to victims of rape notwithstanding the absence of specific proof of the basis for its award. In the instant case, however, while the prosecution offered to present the victims mother, Melinda Recilla, to testify and prove the damages sustained by the family, the defense opted to simply admit the combined claim of actual and moral damages in the amount of P150,000.00.[xxxv][35] WHEREFORE, the decision of the Regional Trial Court (Branch 61) of Gumaca, Quezon, finding appellant Isagani Paraiso guilty of rape with homicide and imposing upon him the death penalty is AFFIRMED. However, the award of indemnity ex-delicto is increased to P100,000.00 consistent with current jurisprudence, while the trial courts award of the stipulated moral and actual damages is AFFIRMED. Pursuant to Section 25 of R.A. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

EN BANC

[G.R. No. 138045. March 14, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIETTA PATUNGAN y PULGA, EDGAR ACEBUCHE y CERVITO and ELMERTO PULGA y ACEBUCHE, accused-appellants. DECISION
GONZAGA-REYES, J.:

At about 10:00 p.m. of May 22, 1994, Antonio Altarejos and his girlfriend Antonia Eluzon with a few other friends were having a drinking spree beside the chapel along Laura Calderon St., Purok 2, Barangay Old Balara, Quezon City. Antonio and Antonia noticed the van of their neighbor Alejandro Patungan parked in front of the chapel and saw two men seated inside, one is the accused Elmerto Pulga at the drivers seat and the other is the accused Edgar Acebuche.[1] Sometime that evening Elmerto Pulga drove the van away from the chapel and towards a vacant lot near Commonwealth Avenue to allow another car to park right in front of the chapel. After the drinking spree, at about 3:00 to 3:30 a.m., the following morning, the lovers Antonio and Antonia went to the basketball court to talk. Moments later they saw Alejandro Patungan and his wife Marietta come out of their house and walk toward the road. Marietta however, went back to their house while Alejandro proceeded without her.[2] At about 3:45 p.m. of May 24, 1994, the decomposing body of Alejandro Patungan was found inside his van parked along Don Quixote St. Sampaloc, Manila. At 7:00 p.m. that day the cadaver was autopsied at the WPD-PNP Medico-Legal Section. The report states as follows:

The body was bloated and in the state of decomposition. The face was dark colored, eyeballs, bulging, tongue half protruding and thick upper and lower lips. Bullae formation in the chest, abdomen and extremities with greenish discoloration in the inguinal regions spreading towards the abdomen. The abdomen was distended with gas. The following external injuries were noted.
1. Stab wound, with the point of entry at the left cheek, 59 inches from heel, 8 cm. From anterior midline, measuring 4 x 2 cm. And exited at the left sub-mandibular region, 54 inches from heel, 4 cm. From anterior midline measuring 2 x 0.6 cm. 2. Ligature mark around the neck measuring 0.5 cm. 3. 8 stab or punctured wounds, oval in shape, in the base of the left lateral neck, supra and infraclavicular region, with the average measurement of 0.3 x 0.5 cm. 4. 51 stab or punctured wounds, evenly distributed in the entire abdomen, oval in shape and with the average measurement of 0.3 x 0.5 cm.

INTERNAL FINDINGS:

1. Lacerations of the sub-cutaneous tissues in the left cheek base of the left lateral neck, infra and supraclavicular regions. Three (3) stab or punctured wounds in the upper lobe of the left lung with massive bleeding in the left thoracic cavity. 2. Injuries to the liver, stomach, spleen, small and large intestines, kidneys, inferior vena cava and abdominal aorta, with massive bleeding in the peritoneal cavity. 3. About 1 glassfuls of partially digested rice with meaty materials and without alcoholic odor was recovered from the stomach.

CAUSE OF DEATH: Multiple stab wounds and ligature strangulation.[3]

On August 16, 1994 an Information was filed against Marietta Patungan for parricide and against Elmerto Pulga and Edgar Acebuche for murder, to wit:

The undersigned accuses MARIETTA PATUNGAN Y PULGA of the crime of PARRICIDE and EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y ACEBUCHE of the crime of MURDER, as committed as follows: That on or about the 22nd day of May, 1994 in Quezon City, Philippines, the said accused, Marietta Patungan Y Pulga being the legal wife of victim ALEJANDRO PATUNGAN Y RANGEL, conspiring and confederating together with her coaccused EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y ACEBUCHE and another person whose true name, identity and whereabouts have not as yet been ascertained and helping one another, with intent to kill, evident premeditation, treachery and with the use of motor vehicle, did, then and there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of ALEJANDRO PATUNGAN Y RANGEL by then and there strangling him with an electric wire and stabbing him with a bladed weapon on the different parts of his body, thereby causing upon him multiple stab wounds which were the immediate and direct cause of his death thereafter, to the damage and prejudice of the heirs of the victim. Contrary to law.[4]
On September 6, 1994 the three accused pleaded not guilty to the offense charged.[5] In addition to the testimonies of Antonio and Antonia, the prosecution presented the extrajudicial confession of the accused Elmerto Pulga, the testimonies of the police officers who took the statement, of the lawyer from the Integrated Bar of the Philippines, Quezon City Chapter, Atty. Pedro Rudio, who allegedly assisted the accused Elmerto Pulga during the custodial investigation and of the medico-legal officer who conducted the autopsy. The extra-judicial confession[6] of accused Elmerto Pulga dated August 11, 1994 linked Marietta to the killing of her husband. It states as follows:
T. Bakit ka narito sa loob ng Integrated Bar of the Philippines, at nagbibigay ng malaya at kusang loob na salaysay?

S. Ako po ay kusang sumuko sa mga pulis hinggil sa nalalaman ko sa pagkamatay ng aking bayaw na si ALEJANDRO PATUNGAN at kaya po akoy nandito ay upang sabihin ko ang aking nalalaman at katotohanan sa mga pangyayari. T. Sino ba itong si ALEJANDRO PATUNGAN at kailan, saan ba siya namatay o pinatay? S. Siya po ay aking bayaw, asawa po siya ng aking kapatid na si MARIETTA PATUNGAN y PULGA at siya po ay pinatay ng ika 13 ng Mayo 1994, doon sa loob ng DAIHATSU VAN ng dalawang tao. T. Anong oras ba ito naganap? S. Humigit kumulang po sa alas 3:30 ng madaling araw ng petsa 23 ng Mayo 1994. T. Papaano mong nalaman ang mga bagay na ito?

S. Kaya ko po alam ang mga bagay na ito ay sapagkat kasama po ako dito sa pangyayaring ito, pero ito po ay nagawa ko lang dahilan sa inutusan ako ng aking kapatid na si MARIETTA upang patayin ang aking bayaw dahilan sa siya ay may kalaguyo na si JUNE ACEBUCHE na kaniyang kakutsaba at ang nakasama ko pa po dito ay ang aming pinsan na si EDGAR ACEBUCHE y Cervito na siyang sumaksak kay ALEJANDRO PATUNGAN. T. Maari mo bang isalaysay sa akin ang mga buod ng pangyayaring to? S. Ako po ay kinausap ng aking kapatid na si MARIETTA ng mga buwan ng Nobyembre 1993 at ang sabi sa akin ay mayroon siyang problema sa buhay, at tinanong ko nga siya kung ano, ang sagot niya sa akin ay tungkol sa kaniyang kalaguyo na si JUNE ACEBUCHE at ang problema niyang talaga ay kung papaano silang magsasamang dalawa eh mayroong siyang asawa, (si ALEJANDRO PATUNGAN) at pilit niya akong kinukumbinsi na king maari ay iligpit ko si bayaw @ ALEX (ALEJANDRO) ayaw ko pong pumayag dahil sa takot po ako, pero tuwing magkikita kaming magkapatid ay lagi niya itong idinadaing sa akin at palagi na lang sinasabi na kung pwede ay patayin ko si ALEJANDRO na aking bayaw, at isang araw nga po ng buwan ng Abril 1994 ay kinausap na muli ako at sila na ngang pong dalawa na (MARIETTA AT JUNE ACEBUCHE) doon sa may JOLIBEE sa Farmers Plaza, Cuban, at pilit ng po akong sinasabihan na iligpit si bayaw dahilan sa balakid ito sa kanila. At minsan pa sinabi sa akin ni MARIETTA na kung pwede ay magbayad na lang kami ng hired killer pero wala naman siyang pera kaya hindi ito natuloy, hanggang sabihin na lang niya sa akin na ako na lang ang gumawa at isama ko ang aming pinsan na si EDGAR ACEBUCHE. At ang plano ng po eh natuloy na, at kami nga eh nagpasya na yariin si bayaw ng ika 15 ng Mayo 1994, pero ito po ay hindi natuloy dahilan sa may mga tao doon sa aming pinagbalakang lugar kaya ito po ay inulit namin sa utos na muli nina MARIETTA at JUNE kaya ng sumapit ang ika 22 ng Mayo 1994, doon kami pinapunta ni MARIETTA sa Flower shop sa Farmers Plaza Market, at binigyan pa nga kami niya ng pera at ang susi ng DAIHATSU VAN para pagpunta namin doon sa Calderon kung saan sila nakatira ay madali kaming makakapasok doon sa loob ng sasakyan. Dumating nga po kami doon sa Calderon at sumakay kami ni EDGAR ACEBUCHE doon sa loob at nagintay sa aking bayaw sa paglabas niya sa madaling araw, pero habang iniintay namin siya ay may dumaang isang pulang kotse at ng hindi nakadaan ay minabuti ko na lang na ilagay sa Hi-way ang Van sa utos ni EDGAR ACEBUCHE. Maya-maya nga po eh dumating na si ALEJANDRO PATUNGAN kasama ang aking kapatid na ang weapon namin sa utos niya (MARIETTA) na kapag dumating na sila ay uuwi siya kunyari sa kanila at maiiwan si bayaw, at ganun na nga ang nangyari, naiwan si bayaw doon sa labas hanggang sa magtungo na siya sa loob ng Van at nagulat pa nga siya ng makita kaming dalawa doon sa loob, pero nagtanong pa siya kung sasama kaming dalawa sa kanilang magasawa, at ang sabi ko naman ay oo, at ganun na nga, ng nakaupo na si bayaw sa manubela ay inatasan akong palihim ni EDGAR na sakalin ko si ALEJANDRO ng dala kong

kable (Electric wire) at ganun na nga po ang ginawa ko, sinakal ko si alejandro at habang sakal ko siya, nagpapapalag ay sinaksak siya ni EDGAR ng isang beses sa tagilirang leeg, at ng hindi mamatay-matay at pinagsasaksak na niya ng todo (madaming beses) at nalugmok si bayaw ay agad na hinila ni EDGAR sa bandang likuran ng Van at ako naman ay kaniyang inatasan na magmaneho at dadalin namin ang bankay sa Maynila (Sa DANGWA/DIMASALANG) ayon sa utos nina MARIETTA at JUNE ACEBUCHE na naayon sa plano nila, na papalabasin na itoy hinoldap sa pamimili ng bulaklak. At ganun na nga po, iniwan ko ang sasakyan sa may Don Quijote St, sa Maynila, (Sampaloc) at kami ni EDGAR ACEBUCHE ay umuwi na at naghiwalay lang kami sa aming bahay sa INC compound, Tangay and relo ni ALEJANDRO. T. Kailan ka ba sumuko sa mga pulis? S. Ika 9 ng Agosto 1994 dahilan po sa nakukunsensiya ako sa mga pangyayaring ito na kakagawan ng aking kapatid at kalaguyo niya. T. Nais ko lang ipabatid sa iyo na sa iyoy walang sino mang pumilit, tumakot, o nangako ng ano mang bagay, upang gawin ang salaysay na ito, naiintindihan mo ba? S. Opo, naiintindihan ko po.[7]

To establish the alleged motive in the killing of Alejandro, the prosecution also presented Adelaida Patungan, the sister of the deceased, who testified that her sister-in-law, the accused Marietta Patungan, had an affair with one of the helpers in the flower shop, who is her own cousin Jun Acebuche. Thus, witness stated that she saw the two eating together from the same plate and that she caught them holding hands. One time she saw Jun kiss Marietta. Her brother allegedly found out about the affair and dismissed Jun from work but he forgave Marietta for the sake of their children.[8] The mother of the victim testified to establish the amount of funeral expenses incurred at P80,000.00, which amount the defense admitted.[9] For the defense, accused Marietta Patungan admitted in court that she was with her husband at early dawn of May 23, 1994 and were on their way to buy flowers for their flower shop but she went back to their house to get a betamax tape and that her husband proceeded without her.[10] On August 9, 1994 she was invited by the police for questioning and that she was in fact questioned about her complicity in her husbands death at the police station without the assistance of counsel.[11] The other accused Edgar Acebuche denied participation in the murder of the victim and stated that sometime on August 8, 1994 he went to his cousin Mariettas flower shop in Cubao to look for a job when the police mistook him for Jun Acebuche and arrested him. He was also subjected to custodial investigation without the assistance of counsel.[12] In court, accused Elmerto Pulga repudiated his extra-judicial confession and stated that he was coerced by the police to admit participation in the murder of Alejandro Patungan and to implicate his sister Marietta as mastermind and cousin Edgar as co-conspirator. He narrated that he was arrested at around 9 a.m., August 9, 1994 and that he was detained and tortured by electrocution by the police until the following day, August 10, 1994, when he agreed to sign a prepared document. On August 11, 1994 he was brought to the IBP office where he met Atty. Rudio who signed the prepared extra-judicial confession as counsel for the accused.[13] A motion to withdraw the plea of not guilty to the offense charged to a plea of guilty to a lesser offense i.e., homicide, was filed by counsel for the accused. The trial court denied the motion and treated it instead as a motion to recall the accused Elmerto Pulga for further testimony. [14] On recall, accused Elmerto Pulga, admitted stabbing the deceased three times until he fell

unconscious, after which he lost control of himself and stabbed the victim some more. He found a rope and pulled the victim by the neck to the back of the van. He stated that he alone was responsible for the death of his brother-in-law. The trial court upheld the validity of the extra-judicial confession and rendered judgment convicting the three accused guilty of the crime charged. The March 16, 1999 decision of the trial court reads as follows:

WHEREFORE, the Court renders judgment finding all accused guilty beyond reasonable doubt as principal of the crime as charged, that is PARRICIDE for MARIETTA PATUNGAN and MURDER for accused ELMERTO PULGA and EDGAR ACEBUCHE, defined and penalized in Article 146 and Article 248, respectively, of the Revised Penal Code, as amended, with the attendant circumstances of treachery and evident premeditation alleged in the Information, sentencing them therefor to death, and ordering them to pay jointly and severally to the heirs of Alejandro Patungan the amount of Fifty Thousand (P50,000.00) Pesos as indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages, and P50,000.00 as moral damages.[15]
The case is before us on automatic review. Counsel for the appellants assigns as error the trial courts appreciation of the testimonies of the prosecution witnesses and its finding in favor of the validity of the extra-judicial confession executed by Elmerto Pulga. The Medico-legal officer who conducted the autopsy on the victim at 7:00 p.m. of May 24, 1994 stated that considering the advanced stage of decomposition of the cadaver the victim must have been dead for thirty-six hours. Based on such findings it is submitted by the appellants that witnesses Antonio and Antonia could not have seen the deceased at 3:30 a.m. of May 23, 1994. The medical findings as to the approximate time of death and the injuries sustained by the victim are in accord with the testimony of Elmerto Pulga who admitted that he killed the victim at around 10:00 p.m. of May 22, 1994 and that he stabbed him thrice while he was seated at the drivers seat. In assailing the validity of the extra-judicial confession, the appellants contend that the trial court failed to appreciate the underlying admissions in the testimonies of SPO3 Villacorte and Atty. Rudio that the accused Pulga was in fact denied the assistance of counsel during custodial investigation. The appellants pray for the acquittal of accused Marietta Patungan and Edgar Acebuche and the conviction of accused Elmerto Pulga for the lesser offense of homicide. The Solicitor-General filed appellees brief praying for the affirmance of the decision of the trial court. It is maintained that the exact time of death of the victim is immaterial in view of the extra-judicial confession of Elmerto Pulga which dovetails with the findings in the autopsy report. What the appellee considers material is the timing when Marietta lured her husband into the van where the two co-conspirators were waiting to execute their murderous scheme. Appellee maintains that Elmerto Pulgas belated repudiation of his extra-judicial confession, his failure to present any evidence to support his claim of torture in the hands of his investigators and his apparent unwillingness to file any administrative charge against them

militates against his claim that his extra-judicial confession was obtained through violence. The appellee asserts that confessions are presumed valid unless proven to have been obtained through violence, intimidation, threat or reward and that in view of the appellants failure to prove any of the aforementioned circumstances that vitiate consent, the trial court did not err in upholding the validity of Pulgas extra-judicial confession. Considering the totality of the evidence, it appears that the principal evidence presented by the prosecution to establish the alleged conspiracy among the appellants to commit murder is the extra-judicial confession of accused Elmerto Pulga. The rest of the evidence presented is at most circumstantial to establish motive and the presence of the appellants at or near the place of the commission of the crime. Section 12 (1), Article III of the Constitution provides:

Sec. 12(1) 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 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.
(1) No torture, force violence threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (2) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him.

An extra-judicial confession to be admissible in evidence must be express and voluntarily executed in writing with the assistance of an independent and competent counsel[16] and a person under custodial investigation must be continuously assisted by counsel from the very start thereof[17] The presence of counsel is intended to secure the voluntariness of the extra-judicial confession.[18] The presence of a lawyer alone, will not suffice to fulfill the requirement of the constitutional provision. The assistance of counsel must be independent and competent that is, providing full protection to the constitutional rights of the accused.[19] A lawyer who simply goes through the motion of reciting the rights of the accused, or acts as a witness to a pre-prepared document containing the extra-judicial confession of the accused or holds an interest contrary to that of the accused does not qualify as independent and competent counsel.[20] To establish the validity of Pulgas extra-judicial confession, the police investigator PO3 Jovencio Villacorte testified that appellant Pulga voluntarily surrendered to the police and told them the whole story of how his younger sister appellant Marietta Patungan masterminded the murder of her husband to be able to marry her lover, and how he and his cousin appellant Edgar Acebuche accomplished Mariettas bidding.[21] Atty. Pedro Rudio of the IBP, Quezon City Chapter, who supposedly assisted Pulga during the taking of the extra-judicial confession, testified that Pulga expressed his consent to be assisted by said counsel and signified that his confession is voluntary. Atty. Rudio stated that he even raised Pulgas shirt to check if he had been subjected to physical violence and found none.[22]

However, a closer examination of the transcript of stenographic notes regarding Pulgas extra-judicial confession is rather disturbing. PO3 Villacorte testified as follows:
Q. And the person of Elmer Pulga was taken in custody or apprehended because that is the term used, arrested. That was the term used by Gacute on August 9, 1994, correct sir? A. In our blotter, sir, it was August 10, Q. August 10? A. Yes, sir. Q. And it was on August 10 that you propounded questions to Elmer Pulga when he was referred to you by Gacute, correct, sir? A. Yes, sir. Q. And do you know that once a suspect is arrested or surrendered for that matter, assuming that he surrendered, that custodial investigation will start immediately? A. Yes, sir. Q. Do you know that a person who is undergoing custodial investigation is entitled to counsel? A. Yes, sir. Q. Did you provide him with a counsel when you talked to him? A. No, sir. First of all, when I conducted the investigation on August 10, he denied to us because he pointed to us. (emphasis supplied). COURT: Ang tinatanong kung may abogado? WITNESS: No, sir, Without any counsel. ATTY. PRADO: Q: Do you know that a person under custodial investigation is entitled to counsel to assist him?

A. yes, sir. Q. Why did you not provide or why did you not make it sure that this Elmer Pulga was assisted by counsel when you were conducting the custodial investigation on August 10, 1994? PROSECUTOR BAUTISTA: Objection, your Honor please, there is no showing that the police investigator, our witness, mentioned or investigated accused Elmerto Pulga on August 10. The questioning and interviewing was done in the office of the IBP on August 11 when he executed an extra-judicial confession. COURT: You answer. A. COURT: Because when I questioned Elmer Pulga, he denied to us, sir. (emphasis supplied).

Q. But did you give him a lawyer? A. No, sir. Q. How come that there was a lawyer assisting Elmerto Pulga? How come? A. Later in the morning when he tell us that he has already the evidence and then he is telling us the truth and then later I brought him to IBP to get a counsel there. Q. Who requested you to bring him to IBP? A. The block commander including Pulga, your Honor. Q. So, the IBP provided the accused a counsel? A. Yes, your Honor. Q. Did he object to the nomination given by IBP? A. No, sir. COURT? Go ahead. ATTY. PRADO: Q. So, in short, Mr. Witness, from August 10 up to 2:00 oclock in the afternoon or August 11, 1994, accused Elmerto Pulga was not assisted by counsel more specifically of his own choice, correct, sir? A. Yes, sir. Q. Do you know that once a person is under custodial investigation, he is immediately entitled to a counsel especially of his own choice? A. Yes, sir. Q. And why did you not make it sure that from August 10 up to August 11 up to 2:00 oclock in the afternoon considering that this Elmer Pulga was already under custodial investigation he was not provided with counsel? A. Because, as I said, when he surrendered, he lied to us. He said he will confess but he even pointed one alleged suspect.[23]

Contrary to PO3 Villacortes assertion that Pulga was taken into custody on August 10, 1994, the police officer who actually took all three appellants into custody, SPO2 Orlando Gacute, testified that the appellants were all invited to the police station on August 9, 1994 and that they were all subjected to custodial investigation without counsel.[24] This means that the appellants, and appellant Pulga, in particular, were in police custody and subjected to custodial investigation for two and a half days without the assistance of counsel before he decided to confess. Villacorte himself admitted that Pulga at first did not want to confess and pointed to another suspect as the perpetrator of the crime. This statement negates the polices claim of voluntary surrender and places in serious doubt the voluntariness of Pulgas extra-judicial confession. Pulga testified that he was arrested on August 9, 1994. He narrated in court that during custodial investigation he was blindfolded with hands tied behind him and was electrocuted by

the police investigators while he was either sitting on a steel bar or had a piece of wet cloth placed on his feet, to compel him to admit commission of the crime charged. He simply cried and could not do anything else but to accede to his tormentors demand. He stated that he signed a pre-prepared document at the precinct before he was taken to the IBP office near the Sulo Restaurant in Quezon City on August 11, 1994.[25] He explained that he narrated his ordeal only for the first time in court because he could not complain to the IBP lawyer, the fiscal nor to the medical officer out of fear of his police investigators and when he was taken to a medical officer for examination, the police escort answered the questions for him. None of his relatives visited him in jail and he only saw his lawyer in court.[26]Until he was brought to court he had no one to confide to and he was at the mercy of the police investigators while he was detained at the Quezon City Jail.[27] As a detention prisoner he was always escorted by the police when he was before the IBP lawyer, the fiscal and the medical officer and Pulga did not find the opportunity to complain to the authorities. To our mind, appellant Pulgas fear of his police escorts is well founded and his delay in revealing what he underwent during custodial investigation does not cast doubt on its veracity, as the prosecution suggests. We also note from the above testimonies that it was only after appellant Pulga verbally confessed at the police precinct, without the assistance of counsel, when he was brought to the IBP office allegedly for the actual transcription of his confession in writing in the presence of a lawyer. It would appear to us that whatever statement Pulga allegedly gave to the police for transcription in the presence of counsel is the product of two and a half days of coercive and uncounselled custodial investigation. We are inclined to believe that when he was brought to the IBP office his body and his will were in no position to raise any objection much less to complain to the IBP lawyer about what he has gone through. The situation was not at all alleviated by the counsel who was supposed to assist Pulga at the taking of the extra-judicial confession. Said lawyer admitted that he was working on an appeal in another case two to three meters away from the police investigator who was then taking Pulgas statement. He stated that he was not totally concentrated on the appealed case because he could still hear the investigation being conducted then.[28] Villacorte testified that while he was taking Pulgas statement the IBP lawyer was working on something else using two other tables four meters apart.[29] The mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and independent.[30] A counsel who could just hear the investigation going on while working on another case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was Pulga subjected to custodial investigation without counsel, he was likewise denied effective assistance of counsel during the actual taking of his extra-judicial confession. For the reasons above stated, We find that the extra-judicial confession of appellant Elmerto Pulga is inadmissible in evidence for having been obtained without effective assistance of counsel. The other pieces of evidence presented by the prosecution fail to establish the charge of conspiracy among the appellants to murder the deceased. The prosecution relied heavily on Pulgas extra-judicial confession but the rest of the evidence presented fail to satisfy the required quantum of proof to establish conspiracy. The prosecution evidence simply establishes the presence of Pulga and Acebuche near or at the place where the victim was last seen alive. It is observed that Antonio and Antonia allegedly saw Pulga and Acebuche inside the van at around 10:00 p.m. and that the victim was last seen with Marietta at around 3:30 a.m. the following

morning. There is no proof that Pulga and Acebuche were still inside the van at 3:30 a.m. and the only circumstance that might indicate that Marietta may have lured her husband to go inside the van to enable Pulga and Acebuche to kill him that morning was her alleged motive to get rid of her husband to marry her lover. It is on record that Marietta and her husband run a flower shop and it is not uncommon, much less suspicious, for them to buy flowers before dawn.[31] The estimated time of death of the victim is nothing but such, an estimate. Due to the advanced stage of decomposition of the body of the victim when it was autopsied at around 7:00 p.m. of May 24, 1994, the medico-legal officer who conducted the autopsy testified that the victim must have been dead for about thirty-six hours.[32] In an apparent attempt to show Mariettas implied admission of guilt, the prosecution presented one of the police officers who invited the appellants for questioning who testified that appellant Marietta tried to commit suicide after the investigation, i.e., that Marietta stabbed herself with a Batangas knife in the bathroom at the police precinct when she found out that her brother Elmerto pointed to her as the mastermind of the murder of her husband.[33] However, no medical record was presented to substantiate this testimony and we note that the police officer did not testify that he saw Marietta stab herself. Marietta denied that she tried to commit suicide and testified that she woke up in the hospital.[34] Whether or not she stabbed herself is not proven by the prosecution and can by no means be considered as an implied admission of guilt of appellant Marietta. We may add that even if she did attempt to commit suicide a female suspect under custodial investigation in a police-dominated atmosphere and without the assistance of counsel, Marietta cannot be expected to act rationally. The evidence as it stands, without the extra-judicial confession of appellant Pulga, is not sufficient to support conviction for parricide against appellant Marietta nor for murder against appellant Acebuche. For this reason we are constrained to acquit them of the crimes charged. Only the judicial admission of Elmerto Pulga remains on record for consideration of the court. He testified as follows:
Q: When you said you agreed to leave at 10:00 oclock in the evening on May 22, 1994, what did you actually do with your brother-in-law then? A: Q: A: Q: A: Q: A: I was the one driving the car in going to Dangwa and while the car was running he told me, Bakit ka nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka. Aside from you brother-in-law, who was with you then in that van you were driving? We were only two. What happened after your brother-in-law told you that statement, Bakit ka nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka. Nauwi po yan sa pagtatalo dahil ayaw siyang pumayag sa aking paliwanag. After that pagtatalo or verbal tussle, what happened next? When we arrived at Dangwa, I turned over the key to him and I told him that, Ikaw na lang ang umuwi. And after that, my brother-in-law got a screwdriver and stabbed me and I was able to grapple. After that, when you were able to grapple that screwdriver from your brother-in-law, what did you do?

Q:

A: Q:

I stabbed him, sir. How many times, Mr. Witness?

A: Three times. After I stabbed him three times, I remember what he was doing to my sister and nawala ako sa aking sarili. Q: A: Are you telling the court, Mr. Witness that you recall having stabbed your brother-in-law three times and the rest you do not know anymore? I cannot remember, sir how may times I stabbed him. [35]

ON CROSS-EXAMINATION, Pulga testified:

Q: How many times did you stab Alejandro Patungan? A: Three times, I stabbed him and then after he fell unconscious, I was not able to control myself. Q: A: Q: A: Q: A: Q: And so after stabbing him three times you left the place? No, maam. I lost control and binanatan ko siya ng binanatan. And you kept stabbing him? Yes, maam. And then you left the place, the premises? And I saw a rope that I put around his neck and pulled him back. So which occurred first, the stabbing or the strangulation?

A: The stabbing, maam.[36]

Pulgas admission that he stabbed the victim thrice coincides with the autopsy report that the victim sustained three stab wounds. Pulgas statement that he was seated at the drivers seat while the victim sat at the passengers seat which means that Pulga was at the left side of the victim also coincides with the medical finding which states that the stab wounds, except those on the victims abdomen, were all on the left side of the body of the victim. The prosecution tried to establish the impossibility of Pulga pulling the victim by himself to the back of the van but no competent evidence was presented to prove the theory. The autopsy report reveals that the victim was 63 inches tall[37] and Pulga testified that he stands 5 feet 4 inches tall.[38] The alleged impossibility was not proven by the prosecution with moral certainty. At any rate, we hold that there is no other evidence on record to show that Pulga was not alone in the commission of the crime. Pulgas admission can be sustained but he cannot be convicted for murder in the absence of proof of any of the qualifying circumstances alleged in the information, i.e., treachery and evident premeditation. The number of stab wounds sustained by the victim, fifty-one in the abdomen and three in the upper part of his body, by itself is not aggravating unless it was shown, and it was not herein shown, to have been intentionally inflicted to add suffering to the victim.[39] On the contrary, Pulga testified that he countlessly stabbed the victim after he fell unconscious. Accordingly, Pulga is hereby convicted of homicide and to suffer the penalty of reclusion temporal.[40] In the absence of any mitigating or aggravating circumstance, the said penalty is to be imposed in its medium period[41] of 14 years, 8 months and 1 day to 17 years and 4 months.

This court is not blind to the suffering of the victims family arising from his untimely death, but we are bound to uphold the constitutional rights of the accused. Let this be a stern lesson to the police authorities and to the prosecution to perform their sworn tasks with utmost regard to the mandates of the Constitution. Criminals cannot be apprehended, prosecuted and punished under the law by resorting to non-legal means. WHEREFORE, appellants Marietta Patungan and Edgar Acebuche are acquitted of the crimes charged against them and the judgment of conviction rendered by the trial court is hereby reversed and set aside. The judgment of conviction for murder against appellant Elmerto Pulga is hereby likewise set aside and a new one entered convicting him of the crime of homicide, and imposing the indeterminate penalty of 10 years of prision mayor in its medium period, as minimum to 17 years and 4 months of reclusion temporal in its medium period, as maximum. This Court affirms the pecuniary awards given by the trial court and orders the appellant Pulga to pay the heirs of the victim the sum of P50,000.00 as indemnity for death, P80,000.00 for actual damages and P50,000.00 for moral damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.

SECOND DIVISION

[G.R. No. 134727. February 19, 2001]

CESAR BARRERA, petitioner, PHILIPPINES, respondent.

vs. PEOPLE

OF

THE

DECISION
DE LEON, JR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals[2] dated March 25, 1998 in C.A. G.R. CR No. 19650, and its Resolution[3]dated July 24, 1998 denying the motion for reconsideration. The petitioner, Cesar Barrera, and his erstwhile co-accused, Domingo Lazo and Celedonio Itape, were charged with the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, in an Information that reads: That on or about May 24, 1981 in the evening at Brgy. Mayapa, Calamba, Laguna and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and jointly helping with (sic) each other, with evident premeditation

and treachery, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and stab one Mario Anacay with a deadly weapon (knife) thereby inflicting upon the latter serious stab wounds at the back which immediately caused his death, to the damage and prejudice of the surviving heirs of the victim Mr. Mario Anacay. That the crime was committed with the aggravating circumstances of nighttime, evident premeditation and treachery in the commission thereof. CONTRARY TO LAW. Upon being arraigned on November 9, 1981, the three accused, assisted by counsel, separately entered the plea of Not guilty to the charge in the information. Thereafter, trial on the merits ensued. It appears from the evidence adduced that the victim, Mario Anacay, and his companion, Jojo Fernandez, were setting up a beto-beto stall when they met the group of herein petitioner Cesar Barrera, Domingo Lazo and Celedonio Itape, near the fair ground (periahan) on the eve of the fiesta in Barangay Mayapa, Calamba, Laguna on May 24, 1981. Barera confronted Anacay about Domingo Lazo's cousin whom Anacay allegedly stabbed in Silang Cavite. As Anacay turned to leave with Fernandez, Barrera suddenly stabbed Anacay once on the back thereby causing the victim to fall on the ground. Afraid that he might also be stabbed, Fernandez ran away to seek help from their other companions.[4] Police officers Cosme Malabanan, Juanito Fajardo and Eugenio Banaag went to the scene of the crime in Barangay Mayapa, Calamba, Laguna after receiving a report of the stabbing incident. Thereafter, they proceeded to the Canlubang Estate Hospital in Laguna where the victim was brought earlier. At the hospital, police officer Malabanan interrogated the victim, Anacay, who declared that Cesar Dictado, Doming and Dolong were his attackers. The declaration of the victim was put down in writing which he thumbmarked with his own blood. Anacay believed that he was going to die (Mamatay po ako.) when asked by police officer Malabanan how he felt as a result of his stab wound.[5] Anacay also mentioned to prosecution witness, Lauro Ejeda, the same names of Cesar Dictado, Doming and Dolong as his attackers. Ejeda knew that Anacay was referring to Cesar Barrera, Celedonio Itape and Domingo Lazo whom he had known for a long time because they were engaged in the same business of beto-beto. Upon the request of Anacay, Ejeda accompanied the policemen back to Barangay Mayapa in Calamba, Laguna and helped them identify the victims attackers. Doming

(Domingo Lazo) and Dolong (Celedonio Itape) voluntarily surrendered to the policemen while the petitioner attempted to evade arrest but was prevented by Ejeda.[6] Meanwhile, the victim was transferred to the Philippine General Hospital in Manila where he died on May 25, 1981 due to shock secondary to stab wound in the back.[7] Petitioner Cesar Barrera denied that he stabbed Mario Anacay in the evening of May 24, 1981. He claimed that on the said occasion he was busy attending to his beto-beto business when a commotion occurred at the fair ground. Nevertheless, he never left his place and that he learned only later what actually happened when people began talking about the stabbing incident.[8] On January 26, 1998, the trial court rendered its decision convicting herein petitioner of the crime of homicide but acquitting his two (2) co-accused of the crime charged in the information. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered1. CONVICTING Cesar Barrera but only for homicide, the prosecution having proved his guilt beyond reasonable doubt. He shall be sentenced to an indeterminate jail term of ten (10) years and one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. He shall indemnify the heirs of Anacay the amount of P50,000.00 and shall be credited for time spent in jail. 2. ACQUITTING accused Domingo Lazo and Celedonio Itape, the quantum of proof for their conviction not having been met. SO ORDERED. Aggrieved by the decision of the trial court, the petitioner appealed to the Court of Appeals. On March 25, 1998, the Court of Appeals rendered its decision affirming the decision of the trial court. After his motion for reconsideration was denied on July 24, 1998 by the appellate court, the petitioner filed with this Court the instant petition for review on certiorari containing the following assignments of error, to wit:
I

THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN IT RULED THAT PETITIONERS DENIAL OF THE CRIME CHARGED CANNOT PREVAIL OVER THE POSITIVE TESTIMONY OF THE PROSECUTION WITNESS JOJO FERNANDEZ, DESPITE THE FACT THAT

FACTS AND CIRCUMSTANCES EXIST WHICH RENDER THE IDENTIFICATION OF THE PETITIONER AS BOUBTFUL AND CANNOT BE THE BASIS OF HIS CONVICTION.
II

A DOCUMENT CONSISTING OF AN AFFIDAVIT HEREIN SUBMITTED WHICH ACCOMPANIES THE INSTANT PETITION IF ADMITTED WILL CERTAINLY EXCULPATE THE ACCUSED-PETITIONER OF THE CRIME CHARGED.
III

THE HON. COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR WHEN IT ACCORDED CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS JOJO FERNANDEZ DESPITE THE FACT THAT HIS TESTIMONY IS FULL OF CONTRADICTIONS AND INCONSISTENCIES WHICH CLEARLY IMPAIR HIS CREDIBILITY.
IV

THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE CRIME CHARGED, ESPECIALLY CONSIDERING THAT HIS CO-ACCUSED, DOMINGO LAZO AND CELEDONIO ITAPE, WERE ACQUITTED BY THE TRIAL COURT, THEIR GUILT NOT HAVING BEEN PROVED BEYOND REASONABLE DOUBT, AND THE ABOVE-MENTIONED AFFIDAVIT EXCULPATING THE ACCUSED OF THE CRIME CHARGED. In substance, the petitioner contends that there is doubt as to his identity as the perpetrator of the crime inasmuch as the victim, Mario Anacay, himself identified his attackers as "Cesar Dictado, Doming and Dolong." The said dying declaration of the victim was confirmed by a prosecution witness, police officer Cosme Malabanan who investigated the victim in the hospital where he was brought after the stabbing incident. Petitioner's contention is not impressed with merit. Prosecution eyewitness Jojo Fernandez positively identified the petitioner, Cesar Barrera, as the same person whom he saw stabbed Mario Anacay on the evening of May 24, 1981. Fernandez categorically declared on the witness stand that he was able to recognize petitioner Barrera for the reason that he (Fernandez) was with the victim, and the premises were well-lighted when the victim was stabbed by the petitioner. Regardless of whatever name Anacay may have known his attacker, the same is not sufficient to overturn the

fact that petitioner Barrera was positively identified by prosecution eyewitness, Jojo Fernandez, as the perpetrator of the crime. Besides, another prosecution witness, Lauro Ejeda testified during the trial that he knew Cesar Dictado, who was referred to by Anacay in his dying declaration as his attacker, to be the same person as the herein petitioner, Cesar Barrera, whom he (Ejeda) had known for a long time.[9] Consequently, the defense of denial by the petitioner pales in the light of the categorical identification made by the prosecution eyewitness, Jojo Fernandez. Positive identification where categorical and consistent and without any showing of ill-motive on the part of the eyewitness testifying on the matter, as in the case at bar, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.[10] Petitioner assails the testimony of prosecution eyewitness Jojo Fernandez for being allegedly incredible. He contends that it would be contrary to human experience for the victim, who used to operate beto-beto business in Canlubang, Laguna, to put up his beto-beto stall in Brgy. Mayapa, Calamba, Laguna only on the eve of the fiesta; that it was highly improbable for the petitioner to exact revenge on Anacay when it was Domingo Lazo whose cousin was stabbed by the victim; that if Fernandez were indeed an eyewitness to the crime, he would not have deserted the wounded Anacay who was his kumpadre; and that his non-flight from the scene of the crime until the police officers arrived and arrested him and his erstwhile coaccused indicated his innocence. The above contentions refer to factual matters which have already been raised by the petitioner and thoroughly passed upon by the Court of Appeals in its Decision dated March 25, 1998 and hence do not warrant a review [11] by this Court. We quote with approbation the appellate courts disquisition, thus: The arguments are, if not without basis in fact, clearly insubstantial and inconsequential. The fact, as testified to by Jojo Fernandez, that the three (3) accused and the victim and Jojo Fernandez set up their beto-beto tables at 10:00 oclock in the evening on the very day of the fiesta is not cause for disbelieving the testimony of the prosecution eyewitness Jojo Fernandez. While it is true that it is customary to put up the beto-beto stands on the eve of the fiesta, such customary practice does not make incredible that the three (3) accused, the victim and Fernandez put up their beto-beto stands at 10:00 oclock in the evening on the very day of the fiesta. After all, beto-beto stands are not difficult or expensive to put up and the decision to put them up naturally depends on the volume of the crowd or beto-beto players, even if already on the very night of the fiesta.

That Fernandez and the victim are compadres does not by itself render the testimony of the former inadmissible or devoid of probative value. Fernandezs testimony that he was at the crime scene and was a witness to the crime is credible. That Fernandez volunteered to be a prosecution witness and that Anacay was his compadre did not render Fernandezs testimony unreliable, because his testimony, independent of their relationship, is not inherently improbable and neither is there proof that he might have been compelled by improper or evil motive in pointing to the accused-appellant as the assailant. We also have to reject appellants contention with respect to the lack of motive on his part to stab the victim. It is well-established rule that proof of motive is not crucial where the identity of the accused has been amply established. The fact that Fernandez ran away upon seeing the stabbing incident and did not help the fallen victim is not difficult to understand. Fernandez explained in his testimony why he ran away. He explained that he was overcome by fear that he would be stabbed next. Finally, it is argued that all three (3) accused did not leave the peryahan even after the stabbing. To quote from a decision of the Supreme Court, Appellants pretended innocence is clearly non sequitur to his decision not to flee. Apart from the fact that there is no case law holding that non-flight is a conclusive proof of innocence, the argument does not hold weight in the light of the positive identification of the appellant.[12] In a desperate attempt to escape criminal liability, the petitioner presented at this late stage an Affidavit[13] dated September 3, 1998 allegedly executed by a certain Elena de Sagun vda. de Gatdula. The affidavit states, in substance, that affiant Gatdula met and befriended petitioner Cesar Barrera and his wife on June 1, 1996; that she learned from the petitioner of his conviction for the death of Mario Anacay; that she recalled and informed the Barrera couple of her alleged late husbands admission to the killing on May 24, 1981 of a certain person by the name of Mario Anacay; that she had no opportunity then to give her statement on the matter; and that she decided to do it now allegedly for the sake of truth and justice to petitioner. The said affidavit of Elena de Sagun vda. de Gatdula is patently hearsay, and therefore, carries no probative value.[14] It appears therein that she learned of the identity of the alleged culprit when her husband, who died in 1983, purportedly admitted to her having killed Mario Anacay on May 24, 1981. In other words, she had no personal knowledge of the killing of Mario Anacay except for the information allegedly revealed to her by her late husband. It is an established doctrine that when

the evidence is based on what was supposedly told the witness, the same is without any evidentiary value or weight, being patently hearsay.[15] WHEREFORE, the instant petition is hereby denied for lack of merit. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

SECOND DIVISION

[G.R. No. 132159. January 18, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y GAROTE, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit. The information in this case, dated April 10, 1995, charged as follows:

That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused [CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y GERALDE[2] and ARTURO GAYON y GERALDE, and mutually helping one another who were charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and feloniously, with intent to kill, taking advantage of superior strength, with evident premeditation and treachery, attack, assault, and employ personal violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him on the different parts of his body, and striking him with a piece of stone on the head, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of EUSEBIO GARDON y ARRIVAS. CONTRARY TO LAW.[3]

Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was tried. Accused-appellants companions, namely Epifanio Gayon, Arturo Gayon, and Maximo Givera, were separately prosecuted and found guilty of murder by the Regional Trial Court, Branch 104, Quezon City in a decision, dated June 6, 1994, in Crim. Case No. Q-93-44315. The three were sentenced to suffer the penalty ofreclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs of the suit. On appeal to this Court, the decision of the trial court was affirmed with modification. The dispositive portion of the decision reads:

WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond reasonable doubt of MURDER committed with grave abuse of superior strength and imposes upon each of them the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount of P100,000.00. Costs against accused-appellants.[4]
For the prosecution, the victims daughter Milagros Gardon and his niece Melinda Delfin were presented as witnesses. On the other hand, only accused-appellant testified in his defense. The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old Balara, in Diliman, Quezon City. Milagros Gardon testified on direct examination:[5]
Q: A: Q: A: Q: A: Q: A: Q: .... A: Q: [O]ur house was being stoned. Who was stoning your house? Could you tell us who was throwing stones to your house? Particularly about 4:00 p.m., were you at your residence at that time? Yes, sir. And what were you doing there at that time? I was in the house because I was watching my father, sir. What was your father doing at that time? I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go outside. Why do you say you were watching him so that he would not anymore go out? Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father. At that time and place while you were watching your father, what else happened if any?

.... COURT: She mentioned that because her father was not coming out of the house, the accused started stoning the house. Q: A: Q: A: Q: A: Q: A: Q: A: Who was stoning your house? Cesar Givera, sir. Was he alone at that time? They were in a group, sir, but he was the only one stoning the house. And the other one, who was already arrested, by the name of Onying went inside the house. You said a while ago that there was somebody with Cesar who went to your house, could you recall that somebody? Onying [Epifanio Gayon], sir. You said he was already nakakulong? Yes, sir. Now, what happened after this person Cesar and the other one Onying went inside the house? Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar scampered away and my father followed him. Cesar caused my father to run after him until they reached the place where there was another person, and that person stabbed my father. So how many persons in all have you seen? They were four in all, sir.

Q: A: .... Q: .... A:

What did these 4 persons do when her father was with them if any?

Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the other one to stab my father while the one who stabbed my father was waiting under the bridge.

.... Q: A: What happened to your father after you said he was stabbed or mauled? After he was stabbed, the person who stabbed him ran away, sir.

On cross-examination, Milagros Gardon said:[6]

Q: A: Who else were with you at that time? My brother and sister, sir.

Q: They were Laura Gardon and Leonardo Gardon, correct? A: Yes, sir.

Q: A: .... Q: A: Q: A: ....

And your father inside the house because he was already resting after having been from a drinking spree, correct? Yes, sir.

And you were watching TV at that time, correct? Yes, sir. And then suddenly you heard stones being thrown on the roof of your house, is that correct? Yes, sir.

Q: This Onying [Epifanio Gayon] suddenly entered your house, correct? A: Q: A: Q: A: .... Q: A: Q: A: Q: A: Q: A: .... Q: A: Q: A: Q: A: Now, when this Onying entered the house, did he call out the name of your father if you can remember? Yes, sir. And your father, did he give any response thereto? Yes, sir. What was his response if any? He asked Onying if he need anything. And Onying asked him to go out with him. At that time were you in a position so as to see him actually effect his entrance through the front door? Yes, sir. Why? Where were you at that time? I was in the sala, sir. You were in the sala right next to your father, is that correct? Yes, sir. And likewise with your two other companions Laura and Leonardo, they were situated right near to your father, correct? Yes, sir. Yes, sir. He was alone when he entered your house, correct? Yes, sir. How did he effect his entrance in your house? He went inside directly, sir.

.... Q: A: .... Q: Then you together with your two other companions got back to watching the television show is that correct? A: Q: A: Q: A: Q: A: .... Q: A: Q: A: .... Q: A: Q: A: Q: A: Q: A: Q: A: .... Q: A: You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean? Yes, sir. And where was Laura hit? At her left shoulder, sir. And how many stones if you know hit Laura? Only one, sir, because while they were stoning they were running away. Who were these people running away? Onying and Cesar, sir. Are you saying that Onying also stoned your father? No, sir. Because he was right next by your father at that time, that is why he was not at all stoning your father, correct? He was boxing him. Was Onying also hit by any of those stones? No, sir. Only my father and my sister. What is the name of that sister of yours who was also hit? Laura Gardon, sir. No, sir. But you stayed inside the house, you and your two other companions? No, sir. Now, thereafter you heard stones thrown again towards your house, is that correct? Yes, sir. But just the same, you did not peep out through any opening of your house for safety? We were already outside when they were stoning the house. We followed him outside. And your father stood up and joined Onying in going out of the house? Yes, sir.

.... Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: And your father followed Cesar Givera, is that what you mean? Yes, sir. Likewise, with Onying, he followed Cesar Givera? Yes, sir. And they ran quite a distance, correct? Yes, sir. And then you lost sight of them yes or no? No, sir. But you stayed in the house, correct? No, sir. I was outside the house. When the incident happened, I was already outside the house. But because you did not state that you also followed your father as he ran after Cesar, does that mean that you just stayed in front of your house? We stopped because we already saw the place where my father was stabbed, that is why we did not follow them. How far did they get, using as reference the front door of your house? How far did they get as they ran away? About fifteen meters away, sir. Did they not turn corners? It is straight, sir. They only made a turn after the stabbing incident, sir.

Q: They turned a corner after your father was stabbed? A: Q: A: Q: A: Q: A: Yes, sir, because they ran away, sir. Only one of the accused stabbed your father, correct? Yes, sir. And who was this? Bingo Givera [Maximo Givera], sir. Did you actually see him stab your father? Yes, sir.

On re-direct examination, Milagros said:[7]

Q: A: .... Q: Now, when you saw Maximo Givera stab your father, where was Cesar at that time? Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that person is Onying who stabbed your father? Maximo Givera, sir.

.... A: Q: A: He was also at the same place, sir. And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when Maximo was stabbing your father? They were also at that place, sir.

Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said:[8]
Q: A: Q: A: Q: At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time? Yes, sir, I was about to reach the house of Eusebio Gardon. What was your purpose in going there? Eusebio Gardon called me up because he has just come from Bicol and he will give me rice. You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what did you notice or observe when you were about to arrived at that place of his residence? I saw Onying [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard. (Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.) .... Q: A: What else did you notice? When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon. (Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.) .... Q: A: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon? Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there.

A:

.... Q: A: Q: A: Q: A: Q: And what happened when you said this Bingo was there? Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were also kicking Eusebio Gardon. Eusebio Gardon was boxed by Onying and Cesar Givera? Yes, sir. And stabbed by? Bingo, sir. Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed?

A: Q: A: .... Q: A: .... Q:

I saw four of them, sir. Would you made these four (4)? Turing, Bingo, Cesar and Onying.

And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed? He was lying down under the bridge for about thirty (30) minutes, and then his children arrived.

You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victims house, is that true?

PROSECUTOR CONCHA: Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing - - ? WITNESS: Suntok, bato at sipa. ATTY. MASCALAS: Q: A: Q: A: Q: A: Q: A: Where did you see them doing these acts on Eusebio? Outside the premises, sir. Whose premises? The premises of Eusebio Gardon, sir. Did you not say earlier that Onying came out with Eusebio Gardon from the latters house? I saw Onying, akbay-akbay niya.. You even saw Onying embracing Eusebio Gardon, correct? Yes, sir. .... Q: A: Q: A: .... Q: A: Q: A: Did you see if Gardon was hit by any of these stones? Yes, sir. And you also saw Onying hit by stones, correct? No, sir. Were there stones being hurled to Onying and Eusebio? Yes, sir. Did you see who were throwing those stones? It was Cesar, sir.

.... Q: A: Q: A: .... Q: A: And when they were able to come near, how near did Cesar get to your uncle? Maybe three to four meters, sir. Who boxed your uncle? Cesar, sir. Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box him? Because they were advancing towards my uncle and Onying. They were going towards them.

Q: That was when Cesar boxed your uncle? A: Q: A: .... Q: A: Q: A: And then Cesar Givera ran away and your uncle gave chase? Yes, sir. And upon reaching the bridge which is about fifteen (15) meters away from the victims house, you saw Bingo stabbed your uncle? Yes, sir. Not yet, sir. When did Cesar box your uncle? When they come near to my uncle.

Q: There were only -- You said that there were only four (4) persons in that place where your uncle was stabbed and those persons do not include Milagros Gardon? A: Q: A: Q: A: Q: A: Q: A: .... Q: So you were also about 15 meters away from the bridge where the alleged incident took place? No, sir. Because Milagros Gardon was still in their house? She was already outside their house. She was outside their house -- although outside their house she was still inside the premises of their lot? She was still inside, but she saw the incident. And that premises of the victim was about 15 meters away from the bridge where the alleged incident took place? Yes, sir. Were you also with Milagros Gardon at the time that stabbing was done? We were not together but I was approaching their house.

A: Q: A:

Yes, sir. And that is your distance when you were claiming that you saw this incident? It was just a little less. (Makalampas lang ng konti).

.... Q: A: Q: A: .... Q: A: Q: A: Q: A: Q: A: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it? Yes, sir. What was Cesar Givera doing when the victim was stabbed by Bingo? They were kicking and boxing my uncle. Givera was doing that? I was asking you about Cesar Givera? He was boxing and kicking my uncle. Who, Eusebio Gardon, the victim? Yes, sir. It was Turing Gayon [Arturo Gayon] whom you heard shout: Sige, todasin na yan! Yes, sir. And it was Bingo [Maximo Givera] whom you saw stabbed your uncle? Yes, sir.

To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the testimony[9] of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound possibly caused by a single bladed weapon.[10] In addition, he sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left arm.[11] The stab wound appears to be fatal because it pierced the pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage, shock and eventual death of the victim.[12] A death certificate[13] evidencing the death of the victim was presented by the prosecution. Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara, Quezon City at the time of the incident. He denied any involvement in the killing of the victim who was his relative by affinity.[14] Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00 p.m., he was having a drink in his cousins house, some 30 meters away from the victims house. On the other hand, Maximo Givera and Arturo Gayon were in the victims house also having drinks. Accused-appellant said he was fetched by his cousin, Recto Gardon, because Maximo and the victim Eusebio Gardon were having an altercation. He went to pacify the protagonists and then led the victim to his house. Without his knowledge, however, Eusebio went back and again engaged Maximo in a fist fight, as a result of which the victim Eusebio was knocked down. Accused-appellant said he was going to help the victim get up, but he saw the

victims son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim behind. He added, that he did not see if his three companions did anything more than box the victim.[15] Accused-appellant said he learned that the victim had died only two days after the incident.[16] Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He stated that the children of the victim implicated him in the killing of Eusebio Gardon only because he was present when the incident happened.[17] On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of murder. The dispositive portion of its decision reads:[18]

WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond reasonable doubt of the crime of murder as charged. The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED.
Hence, this appeal. Accused-appellants sole assignment of error is that

DUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS COMMITTED AN ERROR IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED
The appeal has no merit. First. The prosecution presented evidence which shows beyond reasonable doubt that accused-appellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera), all of whom were convicted of murder in another case, were responsible for the killing of Eusebio Gardon on May 2, 1993. Milagros Gardons testimony, an excerpt from which is quoted at the beginning of this opinion, is spontaneous, detailed, and consistent. The defense tried to discredit through cross examination, but, as shown earlier, the defense only succeeded in enabling her to give further details of her testimony in chief. There are apparent lapses in the testimony of Milagros, as when she testified that she knew at the very beginning that it was accused-appellant who was stoning their house when in fact, as she admitted, she only knew this because the victim said so. Moreover, it may be doubted whether the victims other daughter, Laura, was hit by the stones hurled by accused-appellant as she came out of their house, since the door of the house was so narrow that only one person at a time could pass through it. Nonetheless, a close reading of the records will show that indeed it was accused-appellant who was stoning the house because when the witness followed the victim outside, she saw accused-appellant throwing stones at their house. She then saw accused-appellant hitting the victim with stones. In the process, Laura was also hit.

In any event, these discrepancies are minor and insignificant and do not detract from the substance of her testimony. This Court has time and again said that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details and not in actuality touching upon the central fact of the crime do not impair the credibility of the witnesses. Instead of weakening their testimonies, such inconsistencies tend to strengthen their credibility because they discount the possibility of their being rehearsed testimony.[19] Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged him to come out of the house. After succeeding in drawing the victim out of his house, accusedappellant and his companions ganged up on him, kicking and pummeling him and finally stabbing him. Milagros testimony belies accused-appellants claim that he was merely trying to pacify the victim and Maximo Givera and that he ran away because the victims son, armed with a bolo, charged at him (accused-appellant). There was no reason for the victims son to want to attack accused-appellant, if the latter was merely trying to help the victim. Nor is it probable that accused-appellant did not see what his companions did to the victim aside from giving him fist blows and kicks, because according to accused-appellant, he ran away shortly after they had attacked the victim. As accused-appellant said he saw the assailants run way, this could only be after they had been done with their victim. The defense also tries to discredit the testimony of the other prosecution witness, Melinda Delfin. It is contended that, contrary to her claim, she was not really present at the incident. For this purpose, it is pointed out that she failed to give a sworn statement regarding said incident to the police. The contention has no merit. As Melinda explained, she did not give a statement to the police because she was told they would call on her later for her statement. Melinda testified:[20]
Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it is true, correct? A: Q: A: Q: A: Q: A: No, sir. You were only asked by your relatives - - You testified in this case in the sala of Judge Asuncion after the children of the victim asked you to? Correct? They did not tell me. I voluntarily testified, sir, because I saw the incident. What do you mean by saying that you voluntarily testified? Did you just come to court and asked the court to take you as witness in this case? No, sir, because in the police station the police told me that they will not take my statement. They will just ihahabol na lang ako. Did you not inquire from them why your statement will not longer be taken and what do you mean by that ihahabol na lang ikaw? I did not ask because I do not know anything about that. That was the first time that incident happened to my life.

It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other assailants, and that in fact some of them are related to the witnesses. Accused-appellant

has not shown that these witnesses were motivated by ill will against him. As correctly observed by the trial court:[21]

[T]he court has no reason to doubt the testimonies of the prosecution witnesses. In the first place, accused Cesar Givera has not shown any motive on the part of the prosecution witnesses to testify as they did against said accused. Second, accused Cesar Givera and the other accused in this case are all residing within the vicinity where the crime was committed, and are even related by affinity to the deceased. There is, therefore, no reason to doubt their identification by the prosecution witnesses.
All things considered, we think the trial court correctly dismissed accused-appellants claim and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that accused-appellant and his companions were the last persons seen with the victim before he died, it can be concluded that they are responsible for the victims death. Second. The allegations of conspiracy in the information have been established. The victim was at home sleeping after coming from a drinking session, when the accused-appellant and his companions stoned his house to force him to come out. When they failed, one of them, Epifanio (Onying) Gayon, went inside the victims house and told him to come out. Disoriented because he was drunk, the victim went with Onying. Once the victim was outside, accused-appellant pelted him with stones, while Onying started raining fistic blows on him. Then Onying and accused-appellant ran away to lure him to go toward the bridge where the other two, Arturo Gayon and Maximo Givera, were waiting. When the victim reached the place, he was attacked by the gang. He was kicked and boxed by Onying and when Arturo shouted Sige todasin na yan!, Maximo stabbed the victim. The evidence thus clearly and convincingly shows a coordinated action by the group in the execution of the crime. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the death of the victim. The act of each conspirator in furtherance of the common purpose is in contemplation of law the act of all. Consonant with this legal principle, accused-appellant is guilty of the crime of murder as if he himself dealt the deathblow that sent the victim to his grave.[22] Third. However, evident premeditation cannot be appreciated in this case. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be appreciated.[23] But in an implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be determined if the accused had sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences. There should be a showing that the accused had the opportunity for reflection

and persisted in effectuating his criminal design which the prosecution failed to establish in the case at bar.[24] Nor can the qualifying circumstance of treachery be taken into account. The trial court held:[25]

. . . [T]reachery will also be deduced from the evidence on record. The deceased was unarmed when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera and two other accused. . . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked the deceased by throwing stones at him and then lured him to run after them towards the bridge where the other accused were lying in wait ready to pounce on the deceased without risk to themselves as the deceased was then defenseless.
Treachery is the deliberate and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present at a subsequent stage, it cannot be considered.[26] In the instant case, the victim cannot be said to have been totally oblivious of the impending attack by all the group of accusedappellant. He thus had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to the stoning incident, the victim had been threatened with harm by accused-appellant the moment he went out of his house, which is why she stayed beside her father to make sure he did not go out of the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and his group. Moreover, by coming out of his house and running after two of the assailants, the victim showed that he was prepared for the attack by accused-appellant and his gang and could have been hardly surprised when he was actually attacked. Treachery must be proven by convincing evidence. The fact that the victim may have been surprised because he had not expected that he would be outnumbered when he saw two other attackers waiting for him under the bridge is not sufficient to show that the victim was completely unaware of the attack that might come from his assailants.[27] However, the presence of the qualifying circumstance of abuse of superiority was correctly appreciated in this case. The victim was unarmed and was clearly outnumbered by the four assailants, with one of them armed with a knife.[28] Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996 was made without a warrant. This is not true. He was arrested by virtue of a warrant issued by the court on April 27, 1995. However, as the records show, the warrant of arrest was returned unserved by the arresting officer on June 7, 1995 as accused-appellant could not be found. He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless specifically provided in the warrant, the same remains enforceable until it is executed, recalled or quashed. The ten-day period provided in Rule 113, 4 is only a directive to the officer executing the warrant to make a return to the court.[29]

At any rate, accused-appellant must be deemed to have waived his right to object thereto because he failed to move for the quashal of the information before the trial court, entered a plea of not guilty and participated in the trial.[30] As this Court has held, any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.[31] On the matter of the admissibility of the testimony of the medico-legal taken in the first case, involving the three other accused for the death of the same victim, offered in evidence in the case at bar, this Court must declare the same inadmissible. As correctly contended by the defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed to cross-examine a witness, this Court in several cases held:[32]

Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to crossexamine is lost wholly or in part thru the fault of such adverse party. But when crossexamination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.
Still and all, the fact and cause of death of the victim had been sufficiently proved by the accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim. Fifth. The award of damages by the trial court in favor of the victim should be modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.[33] WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with the MODIFICATION that, in addition to the amount of P50,000.00 to be paid as indemnity, accused-appellant is hereby ordered to pay to the heirs of Eusebio Gardon amount of P50,000.00 as moral damages, plus the costs of the suit. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 141767. April 2, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HILARION TEVES y CANTOR, accused-appellant.

DECISION
DE LEON, JR., J.:

Before us on automatic review is the Decision[1] of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9620-B convicting the appellant, Hilarion C. Teves, of the crime of parricide and sentencing him to suffer the supreme penalty of death. The lifeless body of Teresita Teves y Capuchino was found by a group of barangay tanods in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996. The body of the victim bore strangulation marks around the neck and a stab wound just below the left armpit. During the investigation of the case, the husband of the victim, herein appellant, Hilarion C. Teves, was identified as the driver of the passenger jeep that was allegedly met by the barangay tanods shortly before they chanced upon the dead body of the victim on that fateful evening of August 25, 1996. It was also gathered by the police that the spouses purportedly had misunderstanding prior to the incident. On December 3, 1996, Hilarion Teves y Cantor was charged with the crime of parricide defined and penalized under Article 246 of the Revised Penal Code, as amended, in an Information[2] that reads: That on or about August 25, 1996, in the Municipality of Santa Rosa, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, accused HILARION TEVES y CANTOR, while conveniently armed with a deadly weapon, with intent to kill his wife TERESA CAPUCHINO y TEVES (sic) with whom he was united in lawful wedlock, did then and there wilfully, unlawfully and feloniously stab and strangle the said TERESA CAPUCHINO TEVES with the aforesaid deadly weapon, stabbing the latter on the left side of her chest causing her instantaneous death, to the damage and prejudice of her surviving heirs. CONTRARY TO LAW. Upon being arraigned on January 13, 1997, herein appellant, assisted by his counsel, entered the plea of Not guilty to the charge as contained in the Information. Thereafter, trial on the merits ensued. It appears from the evidence adduced by the prosecution that on August 25, 1996 at around 10:30 oclock in the evening four (4) barangay tanods, namely: Milagros Tayawa, Jerry Pantilla, Angel Lapitan and Jose Bello, were patrolling on board a barangay patrol vehicle in Barangay Macabling, Santa Rosa, Laguna. Milagros was behind the steering wheel. From the old national highway, they entered the NIA road which was an isolated dirt road seldom used by commuters due to its narrow width.

There were no houses and streetlights along the immediate vicinity as the road was bound by an irrigation canal on one side and a stretch of rice field on the other. Subsequently, they met a passenger jeep that was coming from the opposite direction. Milagros had to maneuver backward to accommodate the other vehicle.[3] As the patrol vehicle advanced, the barangay tanods saw a body of a woman lying on the left side of the NIA road. The womans white polo shirt was raised above the chest exposing her right breast and a small wound just below her armpit; while her black pants were lowered down to her knees. Upon ascertaining that the woman was dead, Milagros and her companions immediately informed their chief before proceeding to the Santa Rosa, Laguna Police Station to report the incident. [4]The police examined the cadaver, and then took the sworn statement[5] of Milagros Tayawa on the same evening of August 25, 1996. Dr. Erwin Escal, medico-legal officer, conducted the autopsy on the body of Teresa Teves upon the request of PO2 Tony Gangano. Dr. Escal identified in court the Autopsy Report[6] which shows the following findings: Post Mortem Examination: Fairly developed, fairly nourished female cadaver in rigor mortem with post mortem lividity at the dependent portion of the body. Palpabral conjunctive are pale. Lips and nail beds are cyanotic. There are petechial hemorrhages on the face and neck and subconjunctival hemorrhage on the left lateral conthal region. Head, Neck, Trunk and Extremeties:
1. Hematoma 0.5 x 0.5 cm. mid-pariento occipital area left. 2. Hematoma 0.5 x 0.5 cm. parieto occipital area right. 3. Contusion hematoma right lateral neck, measuring 6 cm. x 0.1 cm. 4. Punctured wound triangular in shape at the mid-axillary line, left pectoralis region measuring 1 x 0.5 x 0.5 cm., non-penetrating. 5. Contusion hematoma 12 x 4 cm. right lateral abdominal region. 6. Abrasion 4 x 2 cm. right lumbar region. 7. Area of contusion hematoma with abrasion right buttocks measuring 7 x 6 cm.

On opening up: The scalp was deflicted to expose the skull and was sawing it off coronally. No skull fracture noted and the brain was grossly normal. Conclusion:

The cause of death is asphyxia by strangulation. According to Dr. Escal, the victim could have been strangled (binigti) with the use of a constricting material which may be a wire, a rope or a nylon cord and that the victim may have been dead for not less than thirty-six (36) hours when it was brought to him for autopsy examination at 5:00 oclock in the afternoon on August 26, 1996. [7] On August 29, 1996 Milagros was invited to the Santa Rosa, Laguna Police Station by the PNP Provincial Director, Supt. Arthur Castillo, to identify a certain person and a passenger jeep in connection with the incident on August 25, 1996. She remembered the person, who turned out to be the husband of the victim, herein appellant Hilarion C. Teves, as the driver of the passenger jeep that they met on the NIA road in Barangay Macabling, Santa Rosa, Laguna shortly before they chanced upon the body of a dead woman later identified as Teresa C. Teves. She recognized the appellant when their respective vehicles momentarily stopped facing each other with their headlights switched on. She had also seen the appellant while the latter was sitting on a bench at the back of the Santa Rosa, Laguna Police Station when she came to verify the status of the case on August 27, 1996. Milagros likewise recognized the passenger jeep[8] as the same vehicle being driven by the appellant when they met on the NIA road in the late evening of August 25, 1996. Milagros explained that she instructed her fellow barangay tanods to train their flashlight on its direction after the passenger jeep sped away and she read partly the plate number at the back as DJN 6 which she wrote on a cigarette foil[9] (palara). She also noted the distinguishing features of the passenger jeep such as: a) the maroon paint on the bumper; b) the small lights attached to the bumper; and c) the green reflectorized paints on the bumper. After identifying the appellant and the passenger jeep, Milagros executed another sworn statement[10] before the police. Upon his detention on the same date of August 29, 1996, the appellant allegedly requested the aunt of the victim, Maria Alulod, who was present at the Santa Rosa, Laguna Police Station, to send his Tata Enteng (Vicente Alulod) to the police station and to bring money for a certain barangay tanod of Barangay Macabling so that his sentence for the commission of the crime would be reduced.[11] Vicente turned down the request as he noted during the wake of Teresa that Hilarion was not actually sorry for his wifes death although he appeared worried (balisa).[12] It also appears that before her untimely demise, Teresa was able to confide with an aunt, Paula Beato Dia, that she had a marital problem. Paula counseled her that it was natural for any husband and wife to have occasional problems. She even suggested to Teresa to seek the advice of her Tata Felix.[13] In July 1996 Teresa approached her uncle, Felix Padua, to seek the latters advice concerning her marital problem. Apparently, her husband, herein appellant Hilarion

Teves, proposed that they live separately. He also wanted to secure an arrangement regarding the custody of their children and his wifes consent regarding the disposition of their house and lot. Teresa could not recall any serious reason for her husbands behavior but she surmised that the appellant resented her comment that his peers were all dalaga and binata. Since Felix was busy at that time, he advised Teresa to visit him on another occasion so that they could discuss her problem thoroughly.[14] In the same month of July, Teresa and the appellant went to the house of Felix Padua in Santa Rosa, Laguna. When asked about their problem, the appellant disclosed that he could no longer put up with Teresas jealousy that often caused him embarrassment before his friends. Felix tried to explain that it was common between any husband and wife to get jealous and that appellant should realize that his wife simply loved him very much. However, the appellant would not listen and even imputed that his wife had a bad character.[15] On July 20, 1996 Paula Beato Dia learned from Teresa that the couple had finally decided to live separately after conferring with their Tata Felix. On July 30, 1996 Teresa informed Paula that the appellant became violent (nagwala) over her refusal to sell their properties. Paula then, advised her niece to bring the matter to the barangay officials.[16] The evidence of the defense shows that the appellant stayed in their house during the day on August 25, 1996. He helped his wife, Teresa, washed their clothes. In the afternoon, he watched basketball game on the television and also helped his children with their school assignments. He started to ply the Binan-Cabuyao route with his passenger jeep at 6:30 oclock in the evening as it was his usual schedule. Before leaving however, he told his wife that he would spend the night in the house of his uncle Caloy in Barangay Tagapo, Santa Rosa, Laguna.[17] It appears that the daughter of his uncle Caloy celebrated her debut which the appellant and his children attended on August 24, 1996. When the party ended, he was requested by the family to help in returning some of the borrowed equipment on the following day. Teresa also left the house at about 8:30 oclock in the evening on the same day allegedly to confer with somebody. She instructed her daughter, Leizel, not to lock the door when they go to sleep. Leizel saw her mother board a tricycle behind the driver, inasmuch as there were already two passengers in its sidecar.[18] Teresa was also seen by another tricycle driver, a certain Edwin Carapatan, at around 9:00 oclock in the evening while she was on board a tricycle behind the driver which was bound for the town proper. Both even greeted each other.[19] Meanwhile due to heavy traffic, the appellant managed to ply his route 2 times only after which he proceeded to the house of his Tiyo Caloy in Barangay Tagapo, Santa Rosa, Laguna. Upon arrival at exactly 8:30 oclock in the evening, the

appellant ate his supper. Thereafter, they arranged the things for him to bring home on the following day. Before going to sleep, the appellant joined the family in watching basketball game on the television until the same was over at 10:00 oclock in the evening.[20] When the appellant arrived home in Barangay Sinalhan, Santa Rosa, Laguna on August 26, 1996, he was informed by his youngest child that his wife was not around. According to appellant, he thought that his wife left early on that day to look for a job. He learned that his wife left the house at 8:30 oclock in the previous evening upon arrival of his second eldest daughter, Lalaine, from school at 12:00 oclock noon.[21] The appellant and his neighbors searched for Teresita in the entire afternoon but in vain. At 10:00 oclock in the evening, he heard of talks that a body of a dead woman was found in Barangay Balibago, Santa Rosa, Laguna. He went to Santa Rosa, Laguna Police Station together with a certain Lebong Dia and was instructed by the police to proceed to Funeraria Lim after hearing his description of his wife. At 11:30 in the evening, he saw the dead body of his wife at the funeral parlor which he brought home after midnight.[22] On August 27, 1996, the appellant went back to the police station in Santa Rosa, Laguna where he was initially informed by a certain police officer Laurel that his wife might be a victim of gang rape. However, he learned later that he was a suspect in the killing of his wife when he was investigated by the police. On August 29, 1996, he returned to the police station in Santa Rosa, Laguna upon being informed that Supt. Arthur Castillo would investigate the case. Three (3) barangay tanods, namely: Angel Lapitan, Milagros Tayawa and Gerry Pantilla were present in the police station. Castillo requested them to identify the appellant; however, none of the three (3) was able to recognize him. The appellant was asked to sit behind the steering wheel of his passenger jeep and was even ordered to wave his hand while pictures of him were being taken. Subsequently, Castillo urged the three (3) barangay tanods to take a good look at the appellant to refresh their memory after which he asked: Ano sa tingin niyo? When no response from the tanods was forthcoming, Castillo again asked: Hindi pa ba ninyo nakikilala yan? After putting his hand on the shoulder of Barangay Tanod Milagros Tayawa, the latter remarked: Parang kahawig niya. Thereafter, Col. Castillo ordered the appellants arrest.[23] On December 7, 1999, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, this court finds accused Hilarion Teves y Cantor, GUILTY beyond reasonable doubt of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code, restored in R.A. No. 7659, Imposing Death Penalty on

Certain Heinous Crimes, and there being present the aggravating circumstances the herein accused killed his wife (a) during nighttime; (b) in an uninhabited place; and (c) with the use of a motor vehicle (jeepney), hereby imposes upon him the DEATH PENALTY and orders him to indemnify the heirs of Teresa Teves the sum of P100,00.00, as moral damages. The Provincial Jail Warden of Santa Rosa, Laguna is hereby ordered to transfer accused Hilarion Teves y Cantor to the National Penitentiary, New Bilibid Prison, Muntinlupa City, immediately upon receipt hereof. SO ORDERED. Aggrieved by the decision, Hilarion C. Teves appealed to this Court raising the following assignment of errors:
I

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF PARRICIDE AS CHARGED IN CRIMINAL CASE NO. 9620B DESPITE FAILURE OF THE PROSECUTION TO PROVE THE MATERIAL ALLEGATIONS IN THE INFORMATION.
II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT DESPITE THE INCOHERENCE, INCREDIBILITY AND INADEQUACY IN WEIGHT AND VALUE OF THE CIRCUMSTANTIAL EVIDENCE RELIED UPON.
III

THE TRIAL COURT ERRED IN CONCLUDING THAT THE ACCUSED IS THE PERPETRATOR OF THE CRIME CHARGED BASED ON THE TESTIMONIES OF MILAGROS TAYAWA AND MARIA ALULOD WHICH ARE INCREDIBLE BASED ON COMMON OBSERVATION AND HUMAN EXPERIENCE.
IV

THE TRIAL COURT LIKEWISE ERRED IN INTERPRETING THE EQUIVOCAL TESTIMONY OF DR. EDWIN ESCAL IN FAVOR OF GUILT AND AGAINST THE INNOCENCE OF THE ACCUSED.
V

THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI.

VI

THE TRIAL COURT ERRED IN APPRECIATING THE PRESENCE OF AGGRAVATING CIRCUMSTANCES. In his brief,[24] the appellant contends, in essence, that the prosecution failed to establish the identity of the perpetrator of the crime. Under the factual milieu of the case, Milagros could not have recognized the vehicle and its driver which she allegedly met on August 25, 1996. He also contends that the testimonies of prosecution witnesses Felix Padua and Paula Beato Dia to the effect that the appellant and his wife had a misunderstanding were basically anchored on mere suspicion. Moreover, the alleged implied admission by the appellant of his alleged guilt before Maria Alulod, who is an aunt of the victim is incredible as it contradicts common human experience. Lastly, the testimony of Dr. Edwin Escal suggests that several malefactors may be responsible for the killing of the victim. The facts of this case clearly show that nobody had actually witnessed the killing of the victim, Teresita Teves, in the evening of August 25, 1996. To prove its case of parricide against the appellant, the prosecution relied on circumstantial evidence. In order to convict an accused based on circumstantial evidence, it is necessary that: 1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[25] In other words, circumstantial evidence is sufficient to support a conviction where the multiple circumstances are proven and are consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that the accused is innocent as well as incompatible with every rational hypothesis except that of guilt on the part of the accused.[26] In convicting the appellant of the crime of parricide based on circumstantial evidence, the trial court found that the testimonies of the prosecution witnesses were credible and sufficient. It is well-settled rule that the trial judges assessment of the credibility of witnesses testimonies is accorded great respect on appeal. [27]Appellate courts will generally not disturb the factual findings of the trial courts since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result of the case.[28] After thorough review, however, we find sufficient basis to warrant the reversal of the assailed judgment of conviction. The trial court relied on the identification made

by Milagros Tayawa during the trial of this case in finding that the appellant was the person driving the passenger jeep that was allegedly met by the four (4) barangay tanods along the NIA road in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996 shortly before they accidentally found the dead body of Teresita Teves. We note, however, the irregular manner by which the pre-trial identification of the appellant and his passenger jeep during the custodial investigation on August 29, 1996 was made by Milagros. At that time, the appellant, who was already a suspect in his wifes murder, was alone inside the investigation room of the Santa Rosa, Laguna Police Station and without his counsel. He was also ordered by Supt. Castillo to board his passenger jeep, extend part of his body outside of the vehicle while waving his hand, as if doing some kind of a re-enactment, to be observed by Milagros and two (2) other barangay tanods namely: Jerry Pantilla and Angel Lapitan. We agree with the Solicitor Generals observation that the pre-trial identification in which the prosecution witness was made to identify the suspect (herein appellant) in a one-on-one confrontation, was pointedly suggestive, generated confidence where there was none, activated visual imagination and, all told, subverted the identification of the appellant by the witness. This method of identification is as tainted as an uncounseled confession and thus, falls within the same ambit of the constitutionally entrenched protection.[29] Besides, there is reason to doubt the reliability of the said testimony of Milagros Tayawa. Milagros allegedly recognized the appellant when their respective vehicles momentarily stopped facing each other while their headlights were switched on. In the ocular inspection conducted during the trial on July 2, 1997, it was demonstrated that the two (2) vehicles were initially twenty and one-half (20 ) feet apart when they stopped facing each other. When the barangay patrol vehicle backed off to accommodate the passenger jeep, the two (2) vehicles were thirty-six and one-half (36 ) feet apart, at which distance the trial court made the observation that the man behind the steering wheel was not cognizable in broad daylight.[30] If the man on the drivers seat was not cognizable in broad daylight, this court is not convinced that an accurate identification of the driver of the passenger jeep, who was allegedly met by the barangay tanods at around 10:30 oclock in the evening on August 25, 1996, can be made even from a distance of twenty and one-half (20 ) feet by the prosecution witness. It must be pointed out that the two (2) vehicles were then passing along an isolated dirt road where there were no houses and streetlights in the immediate vicinity. Under the circumstances, clear visibility was practically improbable, if not impossible, from a distance. There is more reason to doubt the reliability of the testimony of Milagros Tayawa upon consideration of the sworn statement[31] that she gave before the police

authorities during the investigation of this case. Her sworn statement contains a narration of the circumstances leading to the discovery of Teresitas dead body. Significantly, no mention was made therein that she had seen the driver of the passenger jeep that they allegedly met in the late evening of August 25, 1996 on the NIA road, much less described his face or his other physical features. It is absurd to believe that Milagros forgot or the police investigators had been so negligent as to overlook this omission in her affidavit. In the first place, the purpose of the investigation was to elicit basic information about the killing, such as the identity of the perpetrator thereof. It was only during the custodial investigation on August 29, 1996 that Milagros claimed in her subsequent affidavit[32] that she had seen the driver of the same passenger jeep after the irregular one-on-one confrontation with the appellant and after unwarranted suggestions had been made to the said witness by the police officer. Notably, the prosecution failed to present the testimony of the other barangay tanods who were likewise present during the incident on August 25, 1996 to corroborate the testimony of Milagros. This is not difficult to understand considering that the statements elicited from Angel Lapitan during the investigation of the case run counter to the testimony that she gave during the trial, to wit:
Tanong: Nakilala ba ninyo ang nagmamaneho at nakuha ba ninyo ang plaka nito? Sagot: Hindi namin nakilala ang driver dahil patay ang kanyang ilaw sa loob at ng aming ilawan and kanyang likuran ay walang plaka.[33]

Due to the above statement of Angel Lapitan before the police investigator, even the testimony of Milagros Tayawa that she recognized the passenger jeep of the appellant as the same vehicle that they met along the NIA road shortly before having accidentally discovered the dead body of the victim, was also rendered doubtful. Besides, the passenger jeep of the appellant had been impounded at the Santa Rosa, Laguna Police Station since August 27, 1996 or two (2) days before the pre-trial identification of the said vehicle.[34] We also doubt the testimony of Maria Alulod for being contrary to common human experience. It would be highly unlikely and contrary to common sense for the appellant to admit his guilt before this witness, who is an aunt of the victim, while vehemently denying to the police authorities any participation for the death of his wife. It is well-settled rule that evidence, to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself.[35] The motive that allegedly drove the appellant to kill his wife, as testified by prosecution witnesses Felix Padua and Paula Dia, is not convincing. Both prosecution witnesses simply stated in general terms that the appellant and his wife were having a family problem out of the latters jealous attitude and that they decided to separate. These prosecution witnesses failed to furnish any specific incident to the

effect that Teresita had actually feared for her life or that appellant had become so desperate as to will the death of his wife. At the most, their testimonies simply manifest a suspicion of appellants responsibility for the crime. Needless to state, however, suspicion no matter how strong can not sway judgment.[36] On the other hand, the victims daughter, Leizel Teves, testified that her family was a normal and happy family. Leizels testimony was corroborated by the victims cousin, Minerva Diaz, who testified that the Teves family was a harmonious and happy family.[37] Additionally, Rosita Barreto, a friend of the Teves family and a neighbor for over seventeen (17) years, attested that the relations of the appellant and his wife were generally smooth.[38] Even if we would assume that the testimonies of the prosecution witnesses were true, it can not be reasonably inferred therefrom that the appellant is responsible for killing his wife in the absence of any other circumstance that could link him to the said killing. To be sure, motive is not sufficient to support a conviction if there is no other reliable evidence from which it may reasonably be adduced that the accused was the malefactor.[39] In view of the foregoing, we cannot sustain the appealed judgment of the trial court in the case at bar. The prosecution miserably failed to establish the circumstantial evidence to prove its case against the appellant beyond reasonable doubt. Consequently, we need not pass upon the merits of his defense of alibi.[40] It is well-entrenched rule in criminal law that the conviction of an accused must be based on the strength of the prosecutions evidence and not on the weakness or absence of evidence of the defense.[41] WHEREFORE, the appeal is GRANTED. The assailed Decision in Criminal Case No. 9620-B is reversed and set aside. The appellant Hilarion Teves y Cantor is acquitted of the crime of parricide on the ground of reasonable doubt. Unless convicted for any other crime or detained for some lawful reason, appellant Hilarion Teves y Cantor is ordered released immediately. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and SandovalGutierrez, JJ., concur. Puno J., on official leave.

EN BANC

[G.R. Nos. 132635 & 14387275. February 21, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO VELASQUEZ, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision,[1] dated February 12, 1998, of the Regional Trial Court, Branch 59, Angeles City, convicting accused-appellant Lamberto Velasquez of (1) acts of lasciviousness committed against his granddaughter Aira Velasquez and sentencing him to suffer imprisonment from 12 years and 1 day ofreclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify Aira Velasquez in the amount of P30,000.00; and (2) rape of his stepdaughter Mary Joy Ocampo and sentencing him to suffer the penalty of death and to indemnify Mary Joy Ocampo in the amount of P50,000.00. In another case for acts of lasciviousness, accused-appellant was acquitted, while two other ones, also for acts of lasciviousness, were dismissed by the court for lack of jurisdiction. In Criminal Case No. 97-307, it was alleged That sometime in the month of April, 1997, Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of AIRA G. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Airas vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[2] In Criminal Case No. 97-308, the charge was That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, then 13 years old, by inserting his finger into Mary Joys vagina, by means of force and against the will of the said complainant.

ALL CONTRARY TO LAW.[3] In Criminal Case No. 97-309, it was alleged That sometime in the month of April, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, a girl of 16 years of age, by then and there kissing her, caressing and fondling her private parts, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[4] In Criminal Case No. 97-310, it was recited That sometime in the month of March, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of KIMBERLY O. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Kimberlys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[5] In Criminal Case No. 97-311, it was alleged That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously have carnal knowledge with one MARY JOY D. OCAMPO, then 13 years old, by means of force and against her will and consent. ALL CONTRARY TO LAW.[6] Accused-appellant pleaded not guilty to the charges against him,[7] whereupon the cases were consolidated and jointly tried.

The prosecution presented Mary Joy Ocampo, Angelina Velasquez, Ma. Regail Velasquez, Mary Grace Velasquez, Dr. Edwin Manson, and NBI medico-legal officer Dr. Dominic Aguda as witnesses. On the other hand, the defense presented accusedappellant, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Rochelle Velasquez, Renato Cruz, and Roberto Velasquez as its witnesses. The evidence for the prosecution is as follows: Accused-appellant Lamberto Velasquez married Caridad Guevarra on March 14, 1965 and begot six children by her, namely, Randy, Rochelle,[8] Regail, Ranold, Renel,[9] and Ryan. During their marriage, he lived in common-law relation with Dolores Cabinan, by whom he had five children, namely, Robert, Rhea, [10] Roan, Roel, and Judan. He lived with Dolores and their children for more than eight years in a house which they rented from Eladio Dungca.[11] After Dolores died in 1984,[12] accused-appellant lived in common-law relation with Eladios married daughter, Angelina.[13] Angelina already had three children by her husband Roberto Ocampo, namely, Mary Grace, Mary Joy, and Edward. [14] She begot two more children by accused-appellant, named Raymond and Raygel. In 1987, accused-appellants wife, Caridad, died of cancer.[15] On November 8, 1989, accusedappellant married Angelina Dungca[16] and brought his children by Caridad and Dolores to live with them in Angelinas three-bedroom house at 5069 New York Street, Don Cornelio, Dau, Mabalacat, Pampanga.[17] In October 1994, Mary Joy Ocampo, then 13 years of age, slept in a room she shared with accused-appellant, her mother Angelina, and her two half-brothers, Raygel, 12, and Raymond, 5. When she woke up in the morning, she found accusedappellant beside her on the floor, her mother having left for the market. Accusedappellant kissed her on the mouth and the breasts. Then he raised her shirt, pulled down her shorts and underwear, and kissed her private parts. Afterward, accusedappellant inserted his middle finger into Mary Joys vagina. Mary Joy felt a sharp pain and tried to resist by kicking accused-appellant, which made the latter remove his finger although he continued kissing her. Accused-appellant then left, but not before warning her to keep quiet and not to tell anyone what he had done to her. [18] Mary Joy ran to the bathroom and examined herself. Her underwear had bloodstains, and her vagina was bleeding. She felt pain when she washed herself. Her mother returned as she was about to go to school, but because of fear of accused-appellant she said nothing.[19] Two weeks later, still in the month of October, while Mary Joy was watching television alone in the living room, accused-appellant approached her and, though she tried to evade him, he succeeded in forcing her to their room. He lowered her shorts and underwear, raised her shirt and bra, and started kissing her. Then he inserted his

middle finger into her vagina and later had sexual intercourse with her. Mary Joy cried out in pain, prompting him to stop, although he continued kissing and fondling her.[20] Up to April 1997, accused-appellant continuously molested Mary Joy, sometimes forcing her to masturbate him and at other times licking her vagina.[21] Regail Velasquez, accused-appellants daughter by Caridad, has a daughter named Aira. On April 16, 1997, at 3 oclock in the afternoon, while Regail was folding clothes, Aira walked into the room crying. Aira complained that her grandfather did something to her, which she demonstrated by opening her right leg and moving one of her right fingers toward her vagina.[22] Regail did not want to believe her daughter and thought that her father was just joking with the latter. However, Aira started to cry. In the days that followed, she noticed that Aira complained of pain in her vagina while taking a bath. When Regail asked her why her vagina hurt, Aira said it was because of the things her grandfather had been doing to her vagina, showing her mother what had been done to her. [23] On April 28, 1997, Regail noticed pus coming out of Airas vagina. She also noticed that her daughter was running a fever, and that her vagina was red and swollen. She took Aira to Dr. Lydia Buyboy, a private physician, who told her that her daughter had lacerations in her vaginal area and that she had probably been fingered. However, the doctor declined to give a medical certificate as she did not want to get involved in any case.[24] Regail went home and told her stepmother everything. Angelina cried as she could not believe what she had been told. Remembering that a similar thing had happened to her sister-in-laws daughter, Regail talked to Mary Grace. Mary Grace Ocampo Velasquez, Angelinas daughter, married Ranold Velasquez, accused-appellants son by Caridad and Regails brother. Mary Grace testified that she had been molested by her father when she was nine years old. She recalled when, as a new couple, Angelina and accused-appellant spent the night at an aunts house in San Fernando, Pampanga. Mary Grace was with them. According to Mary Grace, accused-appellant went to her side, raised her clothes, and fondled her breasts. His hands went lower. She was unable to resist accused-appellants advances because of his strength and threats. To prevent a recurrence of the event, Mary Grace moved out of their house and went to live with her aunt in Angeles City. [25] Kimberly was around Airas age, and Regail remembered hearing that pus had also come out of the childs vagina. When she told her about Dr. Buyboys findings, Mary Grace lost no time and took Kimberly to Dr. Buyboy, who made the same findings.[26]

That evening, Mary Grace told her husband Ranold about the doctors examination and findings. But they did not know what to do. They could not talk to accused-appellant as he was always drunk and they were afraid of him.[27] On April 30, 1997, a despedida was held for Angelinas sister Loida Kellow, who was leaving for the United States. On that occasion, Regail told her aunt about Airas and Kimberlys ordeal. Angelina was brought in. They also called Mary Joy who, after drinking beer, began to tell everything. Mary Grace and Regail were summoned, and eventually they pieced together accused-appellants pattern of abuse. They decided to file a case against him. Early the next morning, Angelina and Loida went to the police station to make a report. They then went back to the house, fetched the children, and brought them to Dr. Lydia Buyboy for medical examination. However, Dr. Buyboy refused to examine the children. They next went to the Mabalacat District Hospital. Meeting the same rejection, they went to the Department of Social Welfare and Development (DSWD), where they obtained the assistance of a certain Mrs. Dimabuyu. They proceeded to the Ospital ng Angeles where, with Mrs. Dimabuyus help, they were able to prevail on Dr. Edwin Manson to conduct a physical examination of Aira, Kimberly, and Mary Joy. However, Dr. Manson told them that Sige, titingnan ko sila pero walang magandang resulta akong maibibigay sa inyo.[28] After the examination, they went home. Accused-appellant was no longer there. They gathered their things and, with their relatives, checked in at the Monte Carlo Hotel in Dau, Mabalacat. There were over 40 of them. They went back to the Mabalacat Police Station and gave their statements.[29] They stayed at the Monte Carlo Hotel for over four days. When they returned home, accused-appellant had not returned. On May 9, 1997, at Loidas prompting, they went to the National Bureau of Investigation (NBI) for another physical examination. NBI medico-legal officer Dr. Dominic Aguda reported the following findings on Aira Velasquez: GENERAL PHYSICAL EXAMINATION: (Aira Velasquez) Height: 82 cms. Weight: _____ Fairly nourished/developed, conscious, coherent, ambulatory subject Breasts - underdeveloped, immature No extragenital physical injury noted on the subject. GENITAL EXAMINATION: Pubic hair - absent; Labia majora and minora, underdeveloped, coaptated; Hymennal opening - barely admits the tip of the small finger

Hymen - short, thin, with old healed incomplete lacerations at 11 and 5 oclock position, corresponding to the walls of a clock; Fourchetteclassically V-shaped. CONCLUSIONS: 1. No evidence of extragenital findings noted on the subject at the time of examination. 2. Genital findings compatible with penetration of an object, on or about the alleged date of commission.[30] On the other hand, Mary Joy Ocampos medical examination yielded the following results: GENERAL PHYSICAL EXAMINATION: (Mary Joy Ocampo) Height: 410 Weight: 90 lbs. Well developed/nourished, conscious, coherent, ambulatory subject Breasts, developed, hemispherical, doughy, areolae, light brown, 2.0 cms. in diameter. Nipples, protruding, 0.9 cm. in diameter. GENITAL EXAMINATION: Pubic hair - thick, fully grown; Labia majora and minora -coaptated, Fourchette, V-shaped, tense. Vestibular mucosa, pinkish. Hymen-short, thin, with old healed lacerated wound complete at 11, 6 oclock; incomplete at 4, 9 oclock position, corresponding to the face of a clock. Hymenal orifice - admits a tube, 2.0 cms. in diameter with slight resistance. Vaginal walls - moderately tight. Rugosities - deep CONCLUSIONS: 1. No extragenital physical injuries noted on the subject at the time of examination. 2. The above described genital findings are compatible with sexual intercourse with man, on or about the alleged date of commission.[31] The defense then presented the following evidence: In 1965, accused-appellant worked as a photographer/laboratory technician in the Audio Visual American Company at Clark Air Field. In August 1967, as a result of a reduction of the labor force, he was forced to leave the company and thereafter worked as a jeepney driver until 1982 when he was reinstated.[32] In 1988, he was transferred to the Department of Defense Police, with the rank of major, earning P560.00 a day. He worked at Clark Air Field in January 1991.[33] At that time, he was living with Angelina. They earned a living as fish dealers while receiving financial help from relatives abroad.[34]

Accused-appellant remembered having met Angelina Dungca for the first time in the middle of 1984. Toward the end of that year, he started courting her, because he thought that her marriage was void as it had been performed by a barangay captain. It was only when he was already detained at the Angeles City Jail that he asked his brother to verify the legal status of Angelina Dungcas previous marriage. [35] Accused-appellant denied the allegations against him.[36] He said there were always several people in their house at any time, and so it was impossible for him to have an opportunity to molest any of the complainants.[37] Accused-appellant believed that Mary Joy had accused him because he always noticed whenever she came home late and scolded her.[38] As for Mary Grace Ocampos complaint, accused-appellant claimed he was in fact the one who caught Kimberly playing with her organ and that he reported this to Kimberlys parents.[39] Accused-appellant believes that Regail filed the complaint against him because he had scolded her and punished her when she went out on a date with a married man, and again when she went out with her cousin after she had married Meryll Robertson.[40] As to Roan, accused-appellant claimed he never molested her.[41] Of his granddaughter Aira, accused-appellant said:[42]
COURT: How about this Aira, the daughter of Regale Velasquez, did you take care of your granddaughter Aira? A Yes, sir. Si Aira ay nagpunta sa amin noong galing siya sa mga auntie niya sa Mabalacat at ang nanay niya sometimes in January dahil pakakasal nga siya sa Amerikano. Noong napunta sa amin si Aira, si Aira ay isang maldita at lumalaban ng bata. Madaldal ang batang iyan. Ano man ang gawin mo sa kanya marunong nang magsinungaling. Kunin niya o mo ang pera at tanungin mo kung sino ang kumuha ng pera, ang sasabihin niyan si Tatay. Paluin mo maski hindi ikaw ang kumuha ng pera, ang sasabihin si tatay. Paluin mo maski hindi ikaw ang pumalo sasabihin niyan si Tatay. Pero may insidenteng nangyari diyan noong nagdumi siya sa labas, wala siyang panty. Sabi ko, pumasok ka sa loob at mag-panty ka dahil maraming sasakyang dumadaan diyan. Umasta siyang paganoon. Pinalo ko siya ng flies wiper (sic).

COURT: That was the reason why she pointed to you? A Maari po. Hindi lang po iyon. Noong sinasawata kong lumalaban siyang paganoon, sabi ko pumasok kat mag-panty, kinuha ko ang lighter. Sabi ko, susunugin ko iyan pekpek mo kako. Lumalaban pa at pinalo ko. Doon tumakbo siyang umiiyak. And you did what you threatened? No, sir. Pinalo ko lang ng flies wiper (sic). And Aira was then only less than two (2) years old? Opo. Madaldal na po iyan maski bata pa.

Q A Q A

On April 30, 1997, during Loida Kellows despedida, he was drinking with his friends when he developed a headache and decided to sleep. At around 10 oclock in the evening, he was awakened by his son Renel who gave him glass of bitter liquid to drink. The drink contained sleeping pills.[43] After taking one sip, he set it aside. When he woke up
the next morning, he looked for his family, but they were not around. He got home at 8 oclock in the evening, but there was still no sign of them.[44]

The following day, he went to Manila. He pawned his watch and ring and bought a ticket on the Super Ferry 10. At 9 oclock that evening, he sailed for Cebu and stayed with his eldest son, Rolando Velasquez.[45] Three weeks later, he learned of the cases filed against him from the newspapers and television. However, because he had no job and no money, he was unable to return to Pampanga to clear his name. He was found in Cebu and arrested in July.[46] Accused-appellants younger brother, Adelaido Velasquez, a teacher by profession, testified that accused-appellant Lamberto Velasquez is a man of good repute and moral character. They respect and obey him.[47] Sonia Velasquez, a younger sister of accused-appellant, described the latter as a brave and strict man with a loud voice. She also testified that he is a karate instructor, and could hurt another by merely holding him. According to her, Angelina Dungca had disclosed to her and to Adelaido accused-appellants abuses, but she never got around to confronting him.[48] Rochelle, accused-appellants daughter by his first wife, also described her father as a disciplinarian. She testified that while her father was still married to her mother Caridad, he divided his time between her mother and Dolores. When Dolores died, her father lived with Angelina Dungca but occasionally visited her mother Caridad. She said that her sister Regail had told her what accused-appellant had done to Aira. Her brother Ranold Velasquez and sister-in-law Mary Grace Velasquez also told her that Kimberly had been molested by their father. Angelina and Loida then suggested that their father should be killed. As her brothers Ranold, Renel, and Roberto did not agree, Angelina and Loida decided to leave the house and escape from Lamberto Velasquez. [49] Renato Cruz, Rochelles husband, testified that, from the window in their house, he saw accused-appellant being given a drink containing a sleeping pill. He also testified that Loida and Angelina wanted accused-appellants children to cover their fathers mouth with a pillow while he was asleep, but they did not have the courage to do so.[50] Roberto Velasquez, another son of Lamberto Velasquez, also testified for his father, saying that her aunt Loida ordered his brothers to kill their father but Renel did not agree and suggested instead to give him sleeping tablets.[51]

Mario Manarang, a barangay councilman of Dau, Mabalacat, Pampanga and a long-time friend and neighbor of Lamberto Velasquez, testified that he used to play cards and mahjong almost everyday after lunch with the Velasquez family. He admitted having asked Angelina Velasquez to have the cases dismissed and to settle things peacefully, but the latter refused. He was not familiar with the former women in accused-appellants life, only with Angelina, and admitted that, though he gambled with accused-appellant almost everyday, he was not very familiar with his friends family life.[52] On April 14, 1998, the trial court rendered a decision,[53] the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case No. 97-310, for insufficiency of evidence, the accused is hereby ACQUITTED of the crime charged in the Complaint; 2. Criminal Cases No. 97-308 and Criminal Case No. 97-309 are hereby DISMISSED for lack of jurisdiction; 3. In Criminal Case No. 97-307, the accused is found GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness and is hereby sentenced to suffer imprisonment ranging from twelve (12) years and one (1) day of reclusion temporal minimum as minimum to seventeen (17) years of reclusion temporal medium as maximum; 4. In Criminal Case No. 97-311, the accused is found GUILTY beyond reasonable doubt of the crime of Incestuous Rape and is hereby sentenced to suffer the supreme penalty of DEATH. Accused Lamberto Velasquez is further ordered to indemnify the victim Mary Joy Ocampo in Criminal Case No. 97-311 the sum of P50,000.00 and Aira Velasquez in Criminal Case No. 97-307 the sum of P30,000.00. For review in these proceedings, therefore, is the trial courts decision in Criminal Case No. 97-307 for acts of lasciviousness against accused-appellants granddaughter Aira Velasquez, and in Criminal Case No. 97-811 for rape against his stepdaughter Mary Joy Ocampo. Accused-appellant assigns the following errors as having been committed by the trial court:
I The trial court erred in denying the accused of his right to preliminary investigation. II. The trial court erred in admitting the testimony of Regail Velasquez even if it is hearsay evidence and polluted testimony.

III.

The trial court erred in holding there was rape on October, 1994 and erred in giving credibility to Mary Joy Ocampos testimony despite her unbeli[e]vable and inconsistent testimonies. The trial court erred in not giving credence to the testimonies of Lamberto Velasquez, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Roselle VelasquezCruz, Renato Cruz and Roberto Velasquez.

IV.

First. Accused-appellants claim that he was deprived of the right to a preliminary investigation deserves scant consideration. As the Solicitor General points out in his brief for the appellee: It is an established jurisprudence that the issue of lack of or a defective preliminary investigation should be raised before or during trial and such statutory right to a preliminary investigation is deemed waived when appellant, as in this case, failed to claim it before plea (People vs. Paras, 56 SCRA 248). Moreover, in appellants arguments, it is unclear whether this alleged motion for preliminary investigation which was denied by the trial court was anchored on the lack of it or merely a defect thereon or a mere motion for reinvestigation. When it does not appear from the record that a preliminary investigation was not granted the accused, it must be presumed that the proceedings in the trial court were in accordance with law. So that where no objection has been made at the trial, appellant must be taken to have waived his right to a preliminary investigation if in fact he was not given the benefit thereof. Failing to raise the issue of lack of preliminary investigation during the trial, appellant is now estopped to raise this issue (for) the first time on appeal. At any rate, absence of preliminary investigation merely affects the regularity of the proceedings but does not affect the trial courts jurisdiction or impair the validity of the information.[54] Indeed, under Rule 112, 7(3) of the Revised Rules of Criminal Procedure, requests for preliminary investigation must be made to the trial court within five days from the time the accused learns of the filing of complaint or information. Here, the complaints against accused-appellant were filed in the Regional Trial Court of Angeles on May 22, 1997.[55] By his own admission, accused-appellant learned of the filing thereof shortly thereafter, when he heard of the same on television and read it in the newspapers in Cebu City. Yet, he did not ask for preliminary investigation until September 3, 1997. The trial court, therefore, correctly denied his motion, thus: [I]t appearing that the accused was indeed aware of the filing of the charges against him several months ago before the Office of the City Prosecutor and that instead of participating in the said preliminary investigation, he went into hiding and [was] arrested only recently after the cases were filed against him several months ago, the

accuseds motion for reinvestigation and to defer arraignment was denied in open court. Upon being arraigned, the accused assisted by his counsel pleaded NOT GUILTY to all the charges filed against him.[56] The case of People v. Rolito Go,[57] which accused-appellant invokes, is different because there the accused asked the public prosecutors office for preliminary investigation on the same day the information for murder was filed in the trial court. In contrast, accused-appellant Lamberto Velasquez waited until he was arrested and brought to court before invoking his right to a preliminary investigation. He is obviously late in invoking his right. The presumption is that an investigation had been held but accused-appellant could not be found. Failing to invoke his right to a preliminary investigation during the trial, accused-appellant is deemed to have waived the same. Second. The trial court based its conviction of accused-appellant for acts of lasciviousness against Aira Velasquez on the testimony of Regail Velasquez, Airas mother, who testified on what her daughter had told her. Aira herself was not presented in court, being a mere child of two and a half years old. To aapreciate Regails testimony, the relevant portion of the same should be quoted:
Q A Q A Q A Q A Q A In the month of April 1997 at about 3:00 oclock in the afternoon, do you recall where were you? Opo. Where were you then on that time and day? Nasa kuwarto po ako nagtutupi ako ng sinampay. While you were doing all those things, do you recall of any unusual incident that came into your personal knowledge? Opo. Umakyat po sa kuwarto si Aira. Umiiyak po siya na nagsasabi siya sa akin na inaano po siya ng tatay ko, minomolestiya. What exactly did you notice when Aira went up to your room and reported this matter to you? Sinabi niya sa akin kung paano inaano ng tatay ko. Binukaka niya iyong isa niyang paa tapos inaano ang daliri sa ari niya. What do you mean by inaano? Tinutusok ang daliri. (Witness demonstrating how it was done by exactly opening her right foot and her finger pointing to her vagina and doing to and fro movement) PROS. PORNILLOS: You mean to tell us, she demonstrated how the act was done?

A Q A

Yes, sir. Will you please stand up and demonstrate how Aira demonstrated what was done to her? Ganoon nga po. (Witness demonstrating by raising her right foot with the right finger pointing to her sex organ doing to and from movement towards her vagina)

Q A Q A

Did you come to know from her who was doing that? Opo. What did you receive from Aira was the one who was doing that? Tatay ko daw po. Ang tawag niya sa tatay ko ay tatang. . . . .

Who is this Tatay or Tatang you are referring to? Siya po, si Lamberto Velasquez. (Witness pointing to Lamberto Velasquez)

COURT: When was that when your daughter came to you? WITNESS: April po iyon. April 16, 3:00 oclock in the afternoon. COURT: How old was Aira then? WITNESS: 2 years old and 4 months, po. Q A Q A Q A Q A Q A Q 2 years old and 4 months? Opo. She went to you crying? Opo. What were the exact word uttered by that Aira? Mama, Mama sabi niya tapos umiiyak po siya, tapos sabi ko, ninano ka? I-tatang, itatang. Bakit ninanu na kang tatang sabi ko. She was crying with tears flowing from her eyes? Opo. When she uttered, Mama what did you say? Ninanu ka. (What happened to you) What did Aira tell you?

Si Tatang kakayan na ku pu.

INTERPRETER: Tatang is doing something on me. COURT: Then what happened next? WITNESS: Tinanong ko siya kung ano ang ginawa sa kanya, Binukaka ang paa. (Witness demonstrating that she slightly opened her foot and her finger pointing to her vagina making to and fro movement) COURT: Then what happened next? WITNESS: Sinabi ko sa kanya baka niloloko ka lang, tapos umiiyak po siya. COURT: She was crying? WITNESS: Iyon nga po. Inaano daw po ng tatay ko, masakit daw ang ari niya. Q A Q A What is the exact word? Masakit ang pek-pek ko. (My vagina hurts) Then what did you do next? Hindi ko gaanong pinansin dahil baka binibiro lang siya ng tatay ko.

PROS. PORNILLOS: After that you said you did not mind the same because you said he was just joked upon or teased. After that April 16, 1997, what did you find out next? WITNESS: Noong sumunod na iyon, araw-araw ko siyang pinapaliguan dumadaing po siya, masakit daw ang kanyang ari, tapos tinanong ko siya kung bakit dahil wala naman akong alam na dahilan na ikakasakit ng ari niya. Iyon nga po laging sinasabi sa akin na inaano daw ng tatay ko. COURT: Ano ang eksaktong salita ng bata. WITNESS: Sabi niya. I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. WITNESS (Interpretation) (Tatang is doing something on me on my vagina)

COURT: Did you ask her what her tatang did to her vagina? WITNESS: Opo. Ganoon din po dinemonstrate kung paano. Q A Q A The answer, she will demonstrate? Opo. How? Binuka iyong isang paa. Ginanon o. (Witness demonstrating how it was done by slightly opening her right foot or raising her foot and by using her right finger pointing to her vagina with a to and fro movement) Q A Q A Q A Q A What did you notice on the vagina of your daughter? My lumalabas na nana. Did you inspect the vagina? Opo. Pulang-pula tapos may lumalabas na nana sa vagina. When you notice this nana on the vagina of your daughter, what action did you take, if any? Nilalagnat po siya noon, tapos dinala ko siya sa doctor Pinatignan ko po siya. Dinala ko kay Dra. Lydia Buyboy Sa private doctor, po. What happened at the clinic of Dra. Buyboy? Sinabi niya na may laceration iyong ari ng anak ko tapos may impeksiyon po siya.[58]

As the Solicitor General contends, Airas acts and statements constitute exceptions to the hearsay rule because they were part of the res gestae. The inculpatory and spontaneous statements were: (1) Si Tatang kakayan na ku pu. (Tatang (accused-appellant) has been doing something to me.) (2) I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. (Because Tatang has been doing something to my private part, that is why it hurts.) (3) She showed her mother her private part, which was swollen and oozing with pus, and then she gestured, by slightly opening or raising her right foot and using her right finger, to show what accused-appellant had done to it. In People v. Cloud,[59] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughter's head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boys grandmother, cried and repeatedly screamed, "Pinatay siya ng sariling ama!" (He was killed by his own father.) The old woman told the people inside the emergency room that the boy's father had beaten him up, tied his

hands, and stabbed him. On the question of the admissibility of Mrs. Aguilars testimony, this Court ruled: Insofar as the statements of Rufina Alconyes are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim.[60] We hold, therefore, that Airas statements and acts constitute res gestae, as it was made immediately subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity, without prior opportunity to contrive the same. Regails account of Airas words and, more importantly, Airas gestures, constitutes independently relevant statements distinct from hearsay and admissible not as to the veracity thereof but to the fact that they had been thus uttered. Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.[61] Accused-appellant seeks to discredit the testimony of Regail Velasquez by attempting to prove that she is a woman of loose morals. We fail to see, however, how proof of her past relationships with other men can have any bearing on her credibility as a witness in her daughters trial. As the trial court reminded accusedappellants counsel, the witness is not the accused in this case.[62] Regails testimony is buttressed by Dr. Agudas testimony and medico-legal report. While he admitted that the pus in the vagina could be caused by an infection, bad hygiene, or improper urination, he also said the infection could have been caused by the insertion of the finger. Dr. Aguda testified:
WITNESS: I am referring to the findings of the hymen. Since an examination of the hymen, it was found out that there is an incomplete laceration at 11 o'clock and 5 oclock position. Meaning that there was an object that forcefully entered into the hymenal opening causing the incomplete laceration. Q: Like what?

A:

Finger but not erected penis.[63]

Accused-appellant also questions the fact that when Aira was examined on May 9, 1997, Dr. Aguda discovered an old healed laceration, which usually indicates that the injury was inflicted more than one month prior to the examination, whereas the date of the alleged molestation was on April 16, 1997, one week short of a month. This discrepancy was already explained by Dr. Aguda to the satisfaction of the trial court. According to the doctor, the medical classifications and periods were based on adult cases, whereas Aira was a little child with a very small hymen, and the laceration was very superficial. Understandably, then, the results varied slightly.[64] The Court is not unaware of the caution to be observed when circumstantial evidence is to be considered as inculpatory indicia in a criminal prosecution. That is why it has spent an unusual amount of time and effort to reflect upon all the circumstances which the lower court accepted as an unbroken chain of events, reinforced by corroboration and yielding a conclusion of guilt, all consonant with the requisites therefor.[65] But, in this case, the chain of facts cannot but produce an inference consistent with guilt and not with innocence. It is highly unlikely that a child of Airas age would be able to concoct such a depraved tale and compliment it with such disturbing gestures with only the fantastic intention of implicating her grandfather. To sum up, the following circumstances establish accused-appellants guilt: Regails account of her daughters words and actions, her personal knowledge of the pus discharged from her daughters vagina and the NBI medico-legal report confirming it, and accused-appellants bare denials, compounded with his unexplained flight to Cebu, bringing little more with him than the clothes on his back.[66] Taken together, these are sufficient to convince us of the truth of the allegations against accused-appellant. The rule is settled that we give due deference to the observations of trial courts on questions of credibility of witnesses since they have a better opportunity for observation than appellate courts. For this reason, the trial courts evaluation of testimonial evidence is accorded great respect.[67] Aira is a two-year old child. The penalty imposable for acts of lasciviousness against children under 12 years of age should be that provided by R.A. 7610, which is reclusion temporal in its medium period. Accused-appellant is Airas grandfather. His relationship to his victim aggravates the crime, and, as provided by R.A. 7610, Section 31, the penalty shall be imposed in the maximum period when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity. Hence, the maximum period of reclusion temporal medium should be imposed. Applying the provisions of the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be reclusion temporal minimum.[68]

In Criminal Case No. 97-307, the trial court sentenced accused-appellant to suffer a prison term ranging from 12 years and 1 day of reclusion temporalminimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify complainant Aira Velasquez in the amount of P30,000.00. This is correct, and we, therefore, affirm it. Third. The trial court convicted accused-appellant for the rape of Mary Joy Ocampo based on her testimony and the physical evidence presented. Indeed, the accused may be convicted solely on the basis of the testimony of the rape victim, if such testimony is credible, natural, convincing, and consistent with human nature and the normal course of things. We adhere to this principle in the case at bar. Accused-appellant questions the credibility of Mary Joy Ocampo because of a three-year delay in reporting the alleged rape. Delay in reporting an incident of rape is not necessarily an indication that the charge is fabricated.[69] In these cases, the delay was caused by fear. It is apparent from the testimony of witnesses, both of the prosecution and of the defense, that accused-appellant was a man to be feared. He brooked no disobedience even from his own brothers and sisters and was so feared that, even when his life and his freedom were gravely threatened, nobody, not even his own brother, was willing to wake him and confront him with the accusations. His wife, his children, and close relatives fled their home and lived in a hotel for four days to escape his ire. Physically, he was intimidating. He is a black belter in karate and, according to his own sisters testimony, he could hurt a person merely by holding his hand. In fact, accused-appellant threatened Mary Joy with harm if she told anyone what accusedappellant had done to her.[70] It is, therefore, easy to see why Mary Joy kept her silence. Accused-appellant contends that there were several inconsistencies in the testimony of Mary Joy Ocampo. As the trial court said, however: Similarly, Mary Joys alleged inconsistent testimonies as to whether or not she knew Jesus Tootsie Mendoza or Robertson is inconsequential. At any rate, Mary Joy clarified these points: 1. If this Robertson is a family name, she knew (him) as the person who will marry her sister (p. 41, tsn, December 31, 1997). 2. As to Jesus Mendoza alias Tootsie, Mary Joy claims that she does not know Jesus Mendoza although her mother declared that Mary Joy knew Tootsie Mendoza. It is apparent that Mary Joy knew of a Tootsie Mendoza, but not a Jesus Mendoza.

So, also, Mary Joys alleged inconsistent testimony as to whether her mother was in the market or asleep in the house when she was raped is readily explicable or reconcilable. Mary Joy testified that the first time Lamberto inserted his finger on her sexual organ, her mother was in the market and when appellant finally succeeded in inserting his sexual organ into Mary Joys, nobody was at home except her other brothers who were asleep. Evidently, in both instances, Mary Joys mother was not in the house.[71] Inconsistencies on minor or inconsequential matters do not impair the essential integrity of the prosecutions evidence as a whole, nor detract from the witnesses testimony. On the contrary, they strengthen rather than weaken the credibility of the prosecution witnesses because they erase the suspicion of a rehearsed testimony. [72] A rape victim cannot be expected to keep an accurate account of her traumatic experience. Discrepancies could be caused by the natural fickleness of human memory.[73] Mary Joys testimony is corroborated by medical findings of hymenal lacerations, which the trial court found meritorious. Dr. Aguda testified on cross examination:
ATTY. CLEMENTE: You mentioned about this conclusion that the above description genital findings were compatible on sexual intercourse with a man on or about the alleged date of commission. When you said date or commission when was that? A As I stated earlier, the types of laceration were old and healed and it [is] possible that those laceration[s] were made on the victim at the time of the commission of the crime. As relayed to me it started on October 1994 up to April 1997, it is possible. You mentioned that the described findings were possible with sexual intercourse with a man and you confirmed to this Honorable court that the most logical object that entered the female organ of Mary Jane was the penis of a man? Yes an erected penis, sir. In degree of compatibility, how much percent sure that it is an erected penis that entered the female organ of Mary Joy? 80%, sir. . . . . Q A So the most probable is male organ? Yes, sir.[74]

A Q A

On the other hand, accused-appellant merely makes a bare denial of the charges against him. Yet, despite the fact that he had no money and no extra clothes to bring with him for a long trip, he hastily left for Cebu City. His only excuse was that masama ang loob ko[75] and that he feared for his life. He did not, however, report

the alleged attempt on his life, nor did he surrender himself to the Cebu authorities when he learned of the cases filed against him. Accused-appellant said that there was always a large number of people in their house, such that he would have had no opportunity to commit the crimes charged against him. Rape has been known to be committed in places ordinarily considered as unlikely. The scene of the rape is not always nor necessarily isolated or secluded. It can be committed in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are sleeping. Among couples with big families who live in cramped quarters, the presence of other members of the family is not necessarily a deterrent to the commission of this crime.[76] In this case, it is not impossible for the rape to have taken place inside a small room with five occupants therein, including accusedappellant and Mary Joy. Nor is there merit in accused-appellants claim that Angelina instigated their children to file these cases so she can be free to marry an American. As we have observed, it is unnatural for a parent, especially a mother, to use her offspring as an engine of malice and expose her daughters to the pity attached to rape victims simply for a stab at a better life.[77] Besides, accused-appellants children are already grown up, and Regail is not even Angelinas daughter. At the time of the trial, Regail was 28, Mary Joy was 17, and Mary Grace, who testified on Airas behalf and admitted she too had been molested as a child, was 20, lived in another house, and had a family of her own. It is inconceivable that they would concoct a story of defloration and expose either themselves or their daughters to public trial unless they were motivated by the desire to have the culprit apprehended and punished.[78] Fourth. The penalty imposed by the trial court on accused-appellant in Criminal Case No. 97-311 must be modified. Art. 335 of the Revised Penal Code, as amended by 11 of R.A. 7659, provides in pertinent part: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The concurrence of the minority of the victim and her relationship to the offender being a special qualifying circumstance, which increases the penalty (distinguished from a generic aggravating circumstance which only affects the period of the penalty),

should be alleged in the information, consistent with the constitutional right of the accused to be informed of the nature and cause of the accusation against him. In People v. Manggasin,[79] the information charged the accused with the rape of his stepdaughter but the evidence showed that the accused and the complainants mother were not married but had merely been living in common-law relationship. The accused was convicted of simple rape only. Thus, although a common-law husband is subject to punishment by death in case he commits rape against his wifes daughter, nevertheless the death penalty cannot be imposed on accused-appellant in this case because the relationship alleged in the information in Criminal Case No. 97-311 against him is different from that actually proven. Accordingly, accused-appellant must be held liable only for simple rape and sentenced to reclusion perpetua as the proper penalty. In this case, the information in the Criminal Case No. 97-311 alleged that accused-appellant, who is the stepfather of the complainant, succeeded in having carnal knowledge of the latter, who was then 13 years old. However, while it appears that accused-appellant married Angelina Dungca on November 8, 1989 (Exh. F), the Court has serious doubts about the validity of their marriage, considering that Angelinas previous marriage to Roberto Ocampo, the father of Mary Joy Ocampo, was still subsisting at that time. In fact, Mary Joy admitted that her father Roberto Ocampo was still alive when her mother contracted her second marriage. As to the civil liability of accused-appellant, the Court finds that the award of P50,000.00 for civil indemnity is in order. In addition, however, he should be ordered to pay P50,000.00 as moral damages which requires no proof because it is assumed that the victim has suffered moral injuries entitling her to such an award.[80] WHEREFORE, in Criminal Case No. 97-307, the decision of the Regional Trial Court, Branch 59, Angeles City, finding accused-appellant Lamberto Velasquez guilty of acts of lasciviousness and sentencing him to suffer the penalty of imprisonment ranging from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and ordering him to indemnify Aira Velasquez in the sum of P30,000.000, is hereby AFFIRMED. In Criminal Case No. 97-311, the decision of the same court finding accusedappellant Lamberto Velasquez guilty of rape and sentencing him to death is hereby MODIFIED. Accused-appellant Lamberto Velasquez is found guilty beyond reasonable doubt of simple rape and sentenced to reclusion perpetua and ordered to pay P50,000.00 in moral damages in addition to the amount of P50,000.00 as civil indemnity ordered by the trial court to be paid by him. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.