VOL.

158, FEBRUARY 23, 1988 111

People vs. Dy
No. L-74517. February 23, 1988. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.BENNY DY, accused-

appellant.
Criminal Procedure; Evidence; Murder; Case history and the documentary evidence
attesting strongly to appellant's oral confession and voluntary surrender.—The case history
and the documentary evidence attest strongly to Appellant's oral confession and voluntary
surrender. Thus, (1) Entry No. 3904 in the police blotter of the Malay Police Substation, dated
8 May 1984, supra, confirms three significant details: a) Pat. Padilla's testimony that he had
accompanied the Accused to police headquarters in the early morning of 8 May 1984 after
the latter admitted having "shot a tourist"; b) Appellant's voluntary surrender to the Chief of
Police; and c) his surrender of his Smith & Wesson revolver, cal 38, also to the Chief of Police.
Same; Same; Same; Complaint forms part of the record of the proceedings and is prima
facie evidence of the facts therein stated.—The sworn Complaint for "Murder with Use of
Unlicensed Firearm" signed by the Chief of Police (Exhibit "H"), dated 8 May 1984, also
attests to Appellant's oral confession. Said officer could not have prepared the Complaint
with such promptitude sans investigation at "0700H" the morning after the incident were it
not for Appellant's outright admission. That Complaint forms part of the record of the
proceedings before the Municipal Circuit Trial Court of Buruanga, Aklan, and is prima facie
evidence of the facts therein stated (Section 38, Rule 130, Rules of Court). That said
Complaint was sworn to before the Municipal Circuit Trial Court Judge and filed before his
Court only on 17 May 1984 will not detract from the fact that the Chief of Police had taken
official action promptly the very morning of Appellant's surrender by charging him with
"Murder with the Use of Unlicensed Firearm" after having heard his admission.
Same; Same; Same; It would be at variance with ordinary human behavior for appellant
to have voluntarily placed himself under police custody absent any culpability for any
offense.—The fact of Appellant's surrender is further borne out by the Order of the Municipal
Circuit Trial Court Judge, Judge Tonel, dated 17 May 1984, categorically reciting that "no
warrant of arrest is issued for the apprehension of the accused for the reason that he is
already under police custody before the
_______________

* SECOND DIVISION.

112

112 SUPREME COURT REPORTS ANNOTATED

People vs. Dy
filing of the complaint". It would have been at variance with ordinary human behavior
for Appellant to have voluntarily placed himself under police custody absent any culpability
for any offense.
Same; Same; Declaration of an accused acknowledging his guilt of the offense charged
may be given in evidence against him.—Contrary to the defense contention, the oral
confession made by the Accused to Pat. Padilla that "he had shot a tourist" and that the gun
he had used in shooting the victim was in his bar which he wanted surrendered to the Chief
of Police (t.s.n., October 17, 1984, pp. 6-9). is competent evidence against him. The declaration
of an accused acknowledging his guilt of the offense charged may be given in evidence against
him (Sec. 29, Rule 130, Rules of Court). It may in a sense be also regarded as part of the res
gestae. The rule is that, any person, otherwise competent as a witness, who heard the
confession, is competent to testify as to the substance of what he heard if he heard and
understood all of it. An oral confession need not be repeated verbatim, but in such a case it
must be given in substance.
Same; Same; Same; Constitutional procedure on custodial interrogation not applicable
in the instant case.—What was told by the Accused to Pat. Padilla was a spontaneous
statement not elicited through questioning, but given in an ordinary manner. No written
confession was sought to be presented in evidence as a result of formal custodial
investigation. (People vs. Taylaran, G.R. No. 49149, October 31, 1981, 108 SCRA 373). The
Trial Court, therefore, cannot be held to have erred in holding that compliance with the
constitutional procedure on custodial interrogation is not applicable in the instant case, as
the defense alleges in its Error VII.
Same; Same; Testimony of prosecution's witness corroborated.—TUMAOB's motive in
testifying the way he did, further assailed in Error III, is immaterial considering the
corroboration his testimony received from Appellant's proven actuations after the incident.
Efforts by the defense to discredit him as a "professional witness," who allegedly asked for a
consideration from Appellant of P500.00 to swing the testimony in Appellant's favor, but
which the latter rejected, with the insinuation that he could have been paid by Swiss
authorities to testify the way he did in Court, is unavailing since conviction is not based on
his testimony alone.
Same; Same; Alibi; Defense of alibi rejected in the face of overwhelming evidence against
the accused.—The defense of alibi must likewise be rejected in the face of overwhelming
evidence against the Accused. The
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People vs. Dy
Trial Court cannot be faulted, therefore, for denying Appellant's bid for acquittal
contrary to the allegations in Errors IV, X and XI.
Same; Same; No error committed by Trial Court in denying Motion for New Trial.—
Lastly, neither was any error committed by the Trial Court in denying the defense Motion
for New Trial (Error XII) based on the affidavit of recantation of witness TUMAOB that he
was not at Benny's Bar when the victim was shot. Even assuming that it can be considered
as newly discovered evidence it is insufficient to overturn the judgment already rendered.
for., it bears emphasizing that conviction is not based on TUMAOB's testimony alone.

APPEAL from the judgment of the Regional Trial Court of Kalibo, Aklan, Br. 6.

The facts are stated in the opinion of the Court.

MELENCIO-HERRERA, J.:

At around midnight of 7 May 1984, death cast its shadow over Boracay Island, an
internationally known tourist spot famous for its powdery white sand beach. The
Island is accessible by land from Kalibo, Aklan, after a one-and-a-half hour trip. It
can also be reached in twenty (20) minutes by pumpboat from Barangay Caticlan, the
loading point for tourists going to the Island. Caticlan has a small airfield which can
service small planes. Felled by a gunshot wound on the neck, which caused his death
approximately, six (6) hours later, was Christian Langel y Philippine, a Swiss tourist
who was vacationing on the Island together with his sister and some friends.
The following day, 8 May 1984, the follo wing police report was entered as Entry
No. 3904 in the police blotter of the Malay Police Sub-station, Malay, Aklan:
That on or about 0700H 8 May 1984, Pat. Padilla RR reported (to) this sub-station with the
living body of one Beny Dy, with caliber .38 Danao made, as suspect to the shooting incident
at Sitio Angol, ManocManoc, Malay, Aklan, which cause(d) the untimely death of one
Christian Langel Philippine, tourist, 24 years old and a Swiss nationale. Pat. Salibio rushed
to the hospital at Caticlan to obtain ante-mortem but the victim died at about 0600H in the
morning. Suspect Benny Dy voluntarily surrendered to the sub-station commander with his
caliber 38 with serial number 33169 Smith and Wesson (US), [Exhibit 'G']."
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114 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
Acting on the report, Chief of Police Tambong, also on 8 May 1984, prepared a
Complaint (Exhibits "H" and "H-1") charging the Accused, Benny Dy, the owner of
"Benny's Bar," situated on the Island, with the crime of "Murder With the Use of
Unlicensed Firearms" (ibid., p. 2, Original Record). The Complaint was subscribed
and sworn to before Judge Jaime R. Tonel of the 5th Municipal Circuit Trial Court of
Buruanga, Aklan, on 17 May 1984 (Exhibit "H-2") and docketed as Criminal Case No.
1776 of that Court on the same day (Exhibit "H-3", Order, p. 4, Original Record).
The witnesses listed in that Complaint, namely, Bernadette Langel of Chatelaine
Geneve, Switzerland, who is the victim's sister, and Ian Mulvey, of Essex, England,
executed separate Sworn Statements giving their respective versions of the incident
(Exhibits "H-4" and "H-7"). They did not take the stand, however, "for fear of reprisal"
so that said Statements were correctly considered by the Trial Court as hearsay.
On 17 May 1984, Judge Tonel issued the following:
"ORDER

"Having conducted the preliminary examination of this case, this Court finds probable cause
that the crime as charged has been committed and that the accused may be responsible
thereof.
WHEREFORE, let the records of this case be registered in the docket. No warrant of arrest
is issued for the apprehension of the accused for the reason that he is already under police
custody before the filing of the complaint. For the provisional liberty of the accused, bail is
hereby fixed in the amount of Thirty Thousand Pesos (P30,000.00)." (p. 4, Original Record)

The Accused posted the required bail on 13 June 1984, which was approved by Judge
Tonel on the same day. On 12 July 1984 the records of the case were forwarded to the
Office of the Provincial Fiscal, Kalibo, Aklan, "for further proceedings" (Order, p. 10,
Original Record)
On 27 July 1984 the Provincial Fiscal filed the Information before the Regional
Trial Court of Kalibo, Aklan, charging the Accused with Murder. The case was
docketed as Criminal Case No. 2001 in that Court.
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People vs. Dy
After trial, the lower Court rendered judgment on 9 December 1985 with the
**

following decretal portion:

"WHEREFORE, judgment is hereby rendered finding the accused BENNY DY y LIM guilty
beyond reasonable doubt of the crime of MURDER and sentencing him to suffer the penalty
of RECLUSION PERPETUA and to indemnify the heirs, for the death of the victim, in the
sum of P30,000.00; actual damages of P33,243.10; moral damages of P30,000.00; exemplary
damages of P30,000.00; and to pay the costs."

Hence, this appeal. The last Brief before this Court was filed on 26 February 1987
and the case was deliberated upon on 25 January 1988.
Testifying for the prosecution in the Court below, one Wilson TUMAOB, a resident
in the area, and a fisherman by occupation, gave his account of the incident as follows:
"At around 12:00 midnight while inside the bar, he saw the accused Benny Dy shoot a white
person, (meaning a European) who was hit on the right side of the neck (Tsn. Nov. 12,1984,
pp. 78, 80). He recognized the accused as the one who shot the white person because of the
light coming from the petromax lamp which was in front of him and he was just one-and-one-
half meters from the accused and about the same distance from the victim (Tsn, Nov. 12,1984,
p. 81). When he saw the accused shoot the victim, he did not hear any conversation between
them (Tsn. Nov. 14,1984, pp. 81,82). At that precise time, there were many people of different
nationalities coming in and out of the bar. He did not know anyone of them except the accused
Benny Dy (Tsn. Nov. 14,1984, p. 108). Neither did he know the helpers in the bar, nor see
anyone of these customers to be residents of, or friends of his from, barrio Balusbos, Malay,
where he resides.
"In the courtroom during the trial, the witness Wilson Tumaob demonstrated how the
accused shot the victim.

Q. When you said you saw Benny Dy shoot the victim, can
you demonstrate to the Court how he did it?
A. (As demonstrated, the victim and the accused were sitting
and facing then immediately the accused stood up and shot
the victim. (Tsn. Nov. 14,1984, pp. 117, 118).
Wilson Tumaob testified that the accused was about one meter from the victim when the
accused shot the latter. The table where he was sitting
_______________

** Penned by Judge Jaime D. Discaya.

116
116 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
was parallel to the table where the victim was sitting. He was looking at the accused and the
victim when he saw the accused shoot the victim, and the chair occupied by him and the chair
occupied by the victim were at the same side. (Tsn. Nov. 14,1884, pp. 119420). After shooting
the victim, the accused remained at the place where the accused was standing (Tsn. Nov.
14,1984, p. 118).
 The victim was carried by the victim's companions to the shore and they loaded him on a
pumpboat which was anchored about fifty meters from the bar. Wilson Tumaob helped in
carrying the victim to the pumpboat to be brought to the hospital in Caticlan(Tsn. Nov.
12,1984, pp. 82, 83). After the incident the eye-witness (Wilson Tumaob) went home and slept
at around 1:30 in the morning of May 8,1984. (pp. 4-5, Annex '1', Appellant's Brief)."

Additional prosecution evidence is to the effect that in the early morning after the
incident, the Accused confessed orally to Pat. Rodolfo Padilla, the operator of the radio
station on the Island. and voluntarily surrendered the gun he had used in shooting
the victim. Pat. Padilla's testimony reads in part:
"ATTY. RESURRECCION:
Q Sometime on May 8,1984, can you tell the Honorable
Court if you have met the accused Benny Dy?
A At home after coming from the radio station, Benny Dy
came to me and inquired if the Office of the Chief of
Police was opened?
Q And what did you answer him when the accused asked you
that?
A I answered him that the Office of the Chief of Police is
opened for twenty four hours.
Q Did you ask Benny Dy why he asked you if the Office of
the Chief of Police was opened?
A I inquired him why, then he answered me that he had shot
a tourist." (p. 6, t.s.n., October 17, 1984).
xxx xxx
"ATTY. RESURRECCION:
Q When Benny Dy answered you that he shot a tourist, what
did you do?
A I inquired him further if the tourist was dead but he
answered me that the victim was brought to the hospital.
Q What did you do as police officer when Benny Dy told you
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FEBRUARY 23,
1988
People vs. Dy
that he shot a tourist?
A He asked me to accompany him to the
Office of the Chief of Police and I further
asked him the gun he used in shooting the
victim and he answered that it was still in
his house.
 Q When Benny Dy told you that the gun he
used in shooting the tourist was in his
house, what did you do?
A I advised him to get that gun and give it to
me to be deposited in the Office of the
Chief of Police.
Q Were you able to get that gun from the
house of Benny Dy?
A Yes, sir,
Q Were you alone when you went to the
house of Benny Dy to get that gun?
A I called one of the policemen to accompany
me.
Q What is the name of the policeman who
accompanied you?
A Pat. Manuel Casimiro.
Q Were you able to get the gun from the
house of Benny Dy together with your
companion Pat. Manuel Casimiro?
A Benny Dy voluntarily gave the gun to us.
Q So do we understand from you that it was
Benny Dy also together with your
companion Manuel Casimiro who gave or
surrendered the gun to you?
"ATTY. MARIN:
Benny Dy voluntarily gave the gun to him
and Pat. Casimiro.
"COURT TO THE WITNESS:
Q Where did Benny Dy give to you and Pat.
Manuel Casimiro the gun that is
surrendered to you?
A In their house.
"COURT;
Proceed.
"ATTY. RESURRECCION:
Q Who were the persons present in the house
of Benny Dy when the gun was given to
you by him?
A His houseboy called ‘Tan-tan’.
Q Was this Tan-tan already adult or teen-
ager?
A Teen-ager.
 Q What time of May 8,1984, did Benny Dy
give to you and Pat. Manuel Casimiro the
gun he gave to you?
A About 6:00 in the morning." (pp. 7-9, id.)
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118 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
xxx xxx
Q When Benny Dy told you that he shot a tourist in his
establishment, known as Benny's Bar, what else did he
tell you?
A He told me that after shooting the victim he requested
somebody to rush the victim to the hospital.
Q Did you ask him why he shot the victim?
A I did not.
Q You stated that the accused Benny Dy surrendered to you
a gun together with Pat. Manuel Casimiro, if that gun is
shown to you, will you be able to identify the same?
A Yes, sir.
Q I am showing to you a gun in a container revolver caliber
.38 and one (1) bullet exhibit against Benny Dy, which
we request that this container be marked as Exhibit 'A'
for the prosecution, Your Honor.
"COURT:
Mark it.
"ATTY. RESURRECCION:
Q Is this the same gun you are referring to which was
surrendered by Benny Dy?
A Yes, sir, this is the one. (Witness identifying the gun.)"
(pp. 11-12, id.)
The sequence of events presented by the prosecution then discloses that
"Together with Pat. Manuel Casimiro, Pat. Padilla accompanied Benny Dy to the police
headquarters at the Poblacion of Malay. At the police headquarters, Pat. Padilla gave the
gun surrendered by Benny Dy to Chief of Police Ariston Tambong who in turn handed it over
to police supply officer Pat. Romulo Sijano for safekeeping (pp. 13-24, 27, id)." (pp. 7-9,
Appellee's Brief).

The defense version, on the other hand, professes the innocence of the Accused, denies
his presence inside the bar during the shooting, and attributes the offense to an
unrecognized person. Thus:
"On May 7, 1984, Benny Dy was inside his bar. However, he remained therein for a few hours
as he had a headache. He left his bar at around 9:30 or 10:00 o'clock in the evening, and went
to bed in a room
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People vs. Dy
at the annex building behind the bar. He left his friend, Francisco Ureta known as Tan-tan'
and his new helper, Romy, to attend and take charge of the bar.
"In that evening of May 7, 1984, there were several customers inside the bar. Some people
were dancing. At about midnight, a person entered Benny's Bar and in less than two (2)
minutes, an explosion was heard inside the bar. The explosion caused the customers to
scream; they rushed out of the bar including the person who entered immediately before the
explosion.
"The loud explosion coupled with the screaming and rushing of customers, awakened
Benny Dy. He was prompted to immediately come out of his room and directly proceeded to
the bar. Inside the bar, Benny saw a man lying on the sand floor with blood on his shirt.
"lnstinctively, Benny Dy carried this man to the beach, and woke up Charlie the owner of
a pump boat which could take the wounded man to the hospital. While the wounded man was
being loaded in a pumpboat, several persons arrived including Australian Nurses to render
assistance. The wounded man was finally brought to Aklan Baptist Hospital at Caticlan,
Malay, Aklan for treatment. Unfortunately, the patient, whose real name is Christian
Langel, died.
"The shooting in Benny's Bar 'may nabaril sa Benny's Bar', immediately, spread like forest
wild fire in the small Island of Boracay and rapidly transferred from one ear to another and
in the course thereof, it became distorted from 'may nabaril sa Benny's Bar' to 'may nabaril
sa Benny' and finally 'may nabaril si Benny'. Consequently, loose talks rapidly spread that
somebody was shot by Benny ('may nabaril si Benny').
"Appellant Benny Dy who carried the victim to the shore to be brought to the hospital to
save the latter, and who facilitated the surrender to Pat. Rodolfo Padilla a gun which his
helper found the following morning while cleaning the bar. eventually found himself the
suspect in shooting of Langel.” (pp. 1-3, Appellant's Brief)

All defense witnesses were one in testifying that the culprit was someone else other
than the Accused. Thus, Rodrigo Lumogdang, a carpenter allegedly hired by a friend
of the Accused to repair the kitchen of the bar, testified that around 11:30 P.M. of 7
May 1984, he saw a person go inside Benny's Bar but could not recognize him because
the petromax lamp in the bar was not so bright as it was covered by colored red paper.
In less than two minutes after said person entered, a shot exploded from the inside
of the bar. Thereafter he saw the man who had just
120
120 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
entered rush outside holding a gun tucked to his waist (t.s.n., June 25, 1985, pp. 7-
8). He then ran a few meters away and when he came back he saw the Accused asking
"Tantan" what had happened to which the latter replied that a white person had been
shot. In particular, Lumogdang stated that he did not see the Accused at 6:30 P.M.,
when he took a stroll in the beach nor when he came back at around 11:30 P.M. Much
less did he see TUMAOB inside the bar.
Another defense witness, Rogelio Lakandula, testified that he went to Benny's Bar
at around 10:00 P.M. of 7 May 1984. While drinking beer thereat he saw a white
person, who was three meters away from him, shot by a person he did not recognize
but he saw him come from the door and enter Benny's Bar alone. Before and after the
shooting incident, he did not see either the Accused or TUMAOB inside the bar.
Wolfer Tumaob, Jr., a nephew of the principal prosecution witness, TUMAOB,
testified that on 7 May 1984 at 11:00 P.M., TUMAOB, Jover Casidsid, Welmer
Taunan, Wolfer Tumaob, Sr., and he, went out fishing at midsea staying thereat up
to 6:00 A.M. of 8 May 1984 and that they did not pass Boracay Island at all on 7 May
1984 but went home on 8 May 1984.
The accused stoutly denied having made any oral confession alleging that he went
to Pat. Padilla not to report the incident but to state that a boy helper in the bar had
found a gun on the sand floor while cleaning and that Pat Padilla picked up the gun
from the bar at his (Accused's) request (t.s.n., September 2, 1985, pp. 33-36), The
Accused argues that even if he did make such a confession, the same would be
inadmissible in evidence.
The Trial Court found the testimonies of defense witnesses enmeshed in
contradictions on material points, rejected the disclaimers they had made, accorded
more credence to the prosecution version, and as previously stated, rendered a
judgment of conviction.
In this appeal, the accused raises the following
Assignments of Error

The trial Court erred in holding that the Smith & Wesson revolver cal.
121
VOL. 158, FEBRUARY 23, 1988 121
People vs. Dy
.38 with Serial No. 33169 was the gun which caused the death of Christian Langel.

II

The trial Court erred in finding that Wilson Tumaob testified in court ahead of Dr.
Caturan, so the former's testimony on the relative position of the accused and victim could
not have been influenced or tailored to conform to Dr. Caturan's findings on the trajectory of
the bullet slug found in the victim's body.

III

The trial Court erred in holding that Wilson Tumaob had no unfair motive to fabricate a
story different from what he actually witnessed, and in giving weight to his testimony.

IV

The trial Court erred in holding that accused shot Langel.

V
 The trial Court erred in holding that the conflicting testimonies of Pat. Padilla and
Casimiro relate to minor matters which do not affect their credibility.

VI

The trial Court erred in holding that appellant made the oral confession, and in admitting
the same as well as the entries in the police blotter.

VII

The trial Court erred in holding that compliance with the constitutional procedure on
custodial interrogation is not applicable in the instant case.

VIII

The trial Court erred in holding that the uncorroborated testimony of Wilson Tumaob is
sufficient to sustain appellant's conviction.

IX

The trial Court erred in holding that the evidence adduced by the prosecution is
overwhelming and satisfied the test of proof beyond reasonable doubt in convicting appellant.
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122 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
X

The trial Court erred in holding that appellant's defense of alibi is weak.

XI

The trial Court erred in convicting accused-appellant,

XII

The trial Court erred in denying accused-appellant's motion for new trial.

The basic issue is actually one of credibility, the crucial question being whether the
Accused had orally admitted his authorship of the crime and surrendered the gun he
had used in shooting the victim, as the prosecution claims, or, whether he had no
involvement whatsoever, the gun surrendered having been found by a boy helper
inside the bar while cleaning the place the morning after the incident, as the defense
would have us believe.
The case history and the documentary evidence attest strongly to Appellant's oral
confession and voluntary surrender. Thus, (1) Entry No. 3904 in the police blotter of
the Malay Police Substation, dated 8 May 1984, supra,confirms three significant
details: a) Pat. Padilla's testimony that he had accompanied the Accused to police
headquarters in the early morning of 8 May 1984 after the latter admitted having
"shot a tourist;" b) Appellant's voluntary surrender to the Chief of Police; and c) his
surrender of his Smith & Wesson revolver, cal. .38, also to the Chief of Police,
It may be that Chief of Police Ariston T. Tambong, who had presumably made such
entry, died on 15 August 1984 before the start of the trial of this case below and was
not in a position to identify the same before the Court. His successor (Lt. Audie
Arroyo), however, was presented as a prosecution witness and identified said entry
(t.s.n., October 17, 1984, pp. 29-33).
The revolver, marked as Exhibit "F," in turn, was identified by Pat. Padilla as the
firearm surrendered by the Accused. When Pat. Padilla stated that he saw the fatal
gun, its serial number and name for the first time (t.s.n., October 17, 1984, pp. 17-19)
he was clearly referring to particulars which he did not concern
123
VOL. 158, FEBRUARY 23, 1988 123
People vs. Dy
himself with at the time of surrender.
Appellant's assertion that the gun he had surrendered was merely found by a boy
helper while cleaning the bar deserves no credence for, if it were so, it would have
been absurd for him to have placed himself under police custody in the early morning
after the incident.
(2) The sworn Complaint for "Murder with Use of Unlicensed Firearm" signed by
the Chief of Police (Exhibit "H"), dated 8 May 1984, also attests to Appellant's oral
confession. Said officer could not have prepared the Complaint with such
promptitude sans investigation at "0700H" the morning after the incident were it not
for Appellant's outright admission. That Complaint forms part of the record of the
proceedings before the Municipal Circuit Trial Court of Buruanga, Aklan, and
is prima facieevidence of the facts therein stated (Section 38, Rule 130, Rules of
Court). That said Complaint was sworn to before the Municipal Circuit Trial Court
Judge and filed before this Court only on 17 May 1984 will not detract from the fact
that the Chief of Police had taken official action promptly the very morning of
Appellant's surrender by charging him with "Murder with the Use of Unlicensed
Firearm" after having heard his admission.
(3) The fact of Appellant's surrender is further borne out by the Order of the
Municipal Circuit Trial Court Judge, Judge Tonel, dated 17 May 1984, categorically
reciting that "no warrant of arrest is issued for the apprehension of the accused for
the reason that he is already under police custody before the filing of the complaint." It
would have been at variance with ordinary human behavior for Appellant to have
voluntarily placed himself under police custody absent any culpability for any offense.
Contrary to the defense contention, the oral confession made by the accused to Pat.
Padilla that "he had shot a tourist" and that the gun he had used in shooting the
victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n.,
October 17, 1984, pp. 6-9), is competent evidence against him. The declaration of an
accused acknowledging his guilt of the offense charged may be given in evidence
against him (Sec. 29, Rule 130, Rules of Court). It may in a sense be also regarded as
part of the res gestae. The rule is that, any person, otherwise competent as a witness,
who heard the confession, is competent to testify as to
124
124 SUPREME COURT REPORTS ANNOTATED
People vs. Dy
the substance of what he heard if he heard and understood all of it. An oral confession
need not be repeated verbatim, but in such a case it must be given in substance (23
C. J.S. 186, cited in People vs. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431),
What was told by the Accused to Pat. Padilla was a spontaneous statement not
elicited through questioning, but given in an ordinary manner. No written confession
was sought to be presented in evidence as a result of formal custodial investigation.
(People vs. Taylaran, G.R. No. 49149, October 31, 1981, 108 SCRA 373), The Trial
Court, therefore, cannot be held to have erred in holding that compliance with the
constitutional procedure on custodial interrogation is not applicable in the instant
case, as the defense alleges in its Error VII.
With the indubitable official and documentary evidence on record, the identity of
the Accused as the victim's assailant is indisputable. The denials by the defense
immediately lose their credibility and the errors it has assigned are rendered without
any merit whatsoever.
Thus, contrary to Error I, the gun which Appellant surrendered to Pat. Padilla and
the Chief of Police, coupled with his voluntary surrender, cannot but be the weapon
which caused the death of the victim. That is no inference; it is clear and direct
evidence. To further require a ballistic examination and a paraffin test would have
been a superfluous exercise.
The issue raised in Error II as to who testified ahead, TUMAOB or the examining
physician, Dr. Othello Caturan, also becomes irrelevent, TUMAOB's testimony being
corroborated by the documentary evidence heretofore mentioned. Besides, even
without TUMAOB's testimony the documentary evidence on record more than
suffices to overcome the disclaimers by Appellant and on which his assigned Errors
VIII & IX are predicated.
TUMAOB's motive in testifying the way he did, further assailed in Error III, is
immaterial considering the corroboration his testimony received from Appellant's
proven actuations after the incident. Efforts by the defense to discredit him as
a "profes-sional witness," who allegedly asked for a consideration from Appellant of
P500.00 to swing the testimony in Appellant's favor, but which the latter rejected,
with the insinuation that he could
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VOL. 158, FEBRUARY 23, 1988 125
People vs. Dy
have been paid by Swiss authorities to testify the way he did in Court, is unavailing
since conviction is not based on his testimony alone.
Whatever inconsistencies there may have been in the testimonies of Patrolmen
Padilla and Casimiro, posited in Error V, are sufficiently overcome by the
documentary evidence of record.
 As to the testimonial evidence presented by the defense, which the Trial Court
rejected, we find no reversible error in the meticulous assessment it had made
thereof, ably pointing out the material contradictions in the testimonies and
consequently their lack of credibility.
The entries in the police blotter were properly admitted by the Trial Court,
contrary to the allegation in Error VI forming, as they do, part of official records,
The defense of alibi must likewise be rejected in the face of overwhelming evidence
against the Accused. The Trial Court cannot be faulted, therefore, for denying
Appellant's bid for acquittal contrary to the allegations in Errors IV, X and XI.
Lastly, neither was any error committed by the Trial Court in denying the defense
Motion for New Trial (Error XII) based on the affidavit of recantation of witness
TUMAOB that he was not at Benny's Bar when the victim was shot. Even assuming
that it can be considered as newly discovered evidence it is insufficient to overturn
the judgment already rendered, for, it bears emphasizing that conviction is not based
on TUMAOB's testimony alone. Moreover,
"Affidavits of retraction executed by witnesses who had previously testified in court will not
be countenanced for the purpose of securing a new trial.—It would be a dangerous rule for
courts to reject test imonies solemnly taken before courts of justice simply because the wit
nesses who bad given them later on change their mind for one reason or another, for such a
rule would make solemn trials a mockery and place the investigation of truth at the mercy of
unscrupulous witnesses. Affidavits of retraction can be easily secured from poor and ignorant
witnesses usually for a monetary consideration. Recanted testimony is exceedingly
unreliable. So courts are wary or reluctant to allow a new trial based on retracted testimony."
(People vs. Saliling, et al, L-27974, February 27, 1976, 69 SCRA 427, cited in Ibabao vs.
People, L-36957, September 28, 1984, 132 SCRA 216).
126
126 SUPREME COURT REPORTS ANNOTATED
People vs, Dy
The penalty of reclusion perpetua imposed by the Trial Court, however, will have to
be modified. With the abolition of the death penalty in the 1987 Constitution, the
penalty for Murder is now reclusion temporal in its maximum period to reclusion
perpetua. With the mitigating circumstance of voluntary surrender to which the
Accused should be entitled, the penalty is imposable in its minimum period or from
seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight
(8) months. For the application of the Indeterminate Sentence Law, the range of the
penalty next lower is prision mayor in its maximum period to reclusion temporal in
its medium period, or, from ten (10) years and one (1) day to seventeen (17) years and
four (4) months.
WHEREFORE, the test of proof beyond reasonable doubt having been met, the
judgment appealed from is hereby AFFIRMED but with the penalty MODIFIED to
an indeterminate sentence 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, Costs against the accused-appellant Benny Dy.
SO ORDERED.
Yap (Chairman), Paras, Padilla and Sarmiento, JJ.,concur,
 Judgment affirmed with modification.
Notes.—Defense of alibi cannot overcome the dying declaration of the victim and
the testimonies of prosecution eyewitnesses. (People vs, Ebora, 141 SCRA 282.)
Appellant's conviction not based on his alleged oral admission of the crime but
based solely on the credible oral testimony of the prosecution witnesses. (People us.
Rubio,142 SCRA 329.)

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