G.R. No. 75028 November 8, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PIOQUINTO DE JOYA y CRUZ, defendant-appellant.

FELICIANO, J.:p In an Information dated 5 May 1978, appellant Pioquinto de Joya y Cruz was charged before the Regional Trial Court, 3rd Judicial Region, Branch 14, Malolos, Bulacan with the crime of robbery with homicide committed as follows: That on or about the 31st day of January, 1978, in the municipality of Baliuag, province of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the said accused Pioquinto de Joya y Cruz, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and without the knowledge and consent of the owner and, by means of violence and intimidation, take, carry and cart away two (2) rings, one (1) necklace, one (1) piece of earring, belonging to Arnedo Valencia y Angeles and Eulalia Diamse Vda. de Salac, to their damage and prejudice in the sum of FIVE HUNDRED FIFTY PESOS (P550.00); and that on the occasion of the said robbery and for the purpose of enabling him to take the said properties, the accused did then and there wilfully, unlawfully and feloniously with treachery, evident premeditation and great advantage of superior strength, with intent to kill, attack, assault and use personal violence upon the person of Eulalia Diamse Vda. de Salac by stabbing and hitting the latter on her neck and other parts of her body with pointed instrument causing injuries which directly caused the death of the said Eulalia Diamse Vda. de Salac. That in the commission of the offense, the following aggravating circumstances were present (1) abuse of superior strength; (2) committed in the dwelling of the offended party; (3) disregard of age and sex; (4) abuse of confidence. Contrary to law. 1 At arraignment, appellant De Joya pleaded not guilty. After trial, the court a quo rendered a decision dated 16 May 1986 convicting De Joya of the crime charged. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered, finding the accused guilty beyond reasonable doubt of the crime of Robbery with Homicide, committed with the aggravating circumstances of: abuse of superior strength, old age, disregard of sex the victim a woman 88 years old, the crime was committed in the dwelling of the victim. The accused being 72 years old death penalty cannot be imposed against him as provided in Article 47 of the Revised Penal Code. The Court therefore, sentences the accused to LIFE IMPRISONMENT; to indemnify the heirs of the victim in the amount of P20,000.00 and to pay damages in the amount of P550.00. The bond of the accused is ordered cancelled and the accused to be confined immediately in the National Penitentiary pending review of his case by the Supreme Court. The Clerk of Court is ordered to immediately forward the record of this case to the Supreme Court for review. SO ORDERED. 2 In this appeal, appellant raises a number of issues all of which, however, amount to one basic assertion: that the lower court erred in concluding that appellant was guilty beyond reasonable doubt of the crime charged. The facts have been summarized in the brief of the Solicitor General in the following manner:

The spouses Arnedo Valencia and Herminia Salac-Valencia, together with their ten (10) year old son Alvin Valencia and Herminia Valencia's 88-year old mother, Eulalia Diamse, are residents of Balagtas St., Baliuag, Bulacan. (TSN, June 11, 1981, p. 2). Both spouses are teachers by profession. Arnedo Valencia teaches at the Tiaong Elementary School at Barrio Tiaong, Baliuag, Bulacan whereas Herminia Valencia teaches in an intermediate school at Baliuag, Bulacan. (TSN, March 11, 1980, p. 7). In the afternoon of January 31, 1978, Herminia Salac-Valencia left for school to teach. Her mother Eulalia Diamse was then [sitting] at their sofa watching the television set. (TSN, October 12, 1978, p. 3). Her Son Alvin likewise left for school at 1:00 o'clock. And at 3:00 o'clock in the afternoon, his classes were dismissed and he proceeded home. (TSN, March 11, 1980, p. 8). At around 3:00 o'clock in the afternoon of that same day, the spouses Valencia's neighbor by the name of Gloria Capulong, together with a friend, went out of the former's house to visit a friend. While at her yard, Gloria Capulong looked back to the direction of the Valencia's house. She noticed appellant Pioquinto de Joya standing and holding a bicycle at the yard of the Valencia's. (TSN, June 11, 1981, pp. 2-4). When Alvin reached home, he saw his grandmother Eulalia Diamse lying down prostrate and drenched with her own blood. He immediately threw his bag and ran towards her. He then held her hands and asked her: "Apo, Apo, what happened?". (TSN, March 11, 1980, p. 10). . . . [Eulalia Diamse held his hand and after which said: "Si Paqui". After saying these words, she let go of Alvin's hand and passed away. (TSN, Ibid., pp. 14 and 17). Alvin then called for his Nana Edeng and told her to see his lola because she was drenched with her own blood. His Nana Edeng told him to immediately see his mother Herminia SalacValencia to inform her of what happened. (TSN, Id). Upon seeing her mother, Alvin told her: "Mommy, Mommy, apo is drenched in her own blood." (TSN, March 11, 1980, p. 20). Herminia immediately ran outside the school, flagged down a tricycle and went home. Alvin followed, riding his bicycle (TSN, Id., p. 21). When she reached their house, she found her mother lying prostrate in her own blood at their sala in front of the television. Her mother's hands were stretched open and her feet were wide apart. Blood was oozing out of her mother's ears. She then embraced her mother and placed her on the sofa. She asked Alvin and the tricycle driver to call Dr. Delfin Tolentino. (TSN, October 12,1978, pp. 25-26). Dr. Tolentino arrived at around 4:00 o'clock that same afternoon and examined the body of Eulalia Diamse. Said doctor declared that said Eulalia Diamse had a heart attack which caused her death. When asked by Herminia Valencia why her mother's ears were punctured, no reply was given by said doctor. Herminia requested for a death certificate, but Dr. Tolentino did not issue one and instead immediately left. (TSN, Ibid., pp. 27-29). Herminia found out that the two (2) gold rings worn by her mother were missing. The right earring of her mother was likewise missing. All of these were valued [at] P300.00 (TSN, Id., p. 15). That same afternoon, Herminia saw the room of the groundfloor ransacked. The contents of the wardrobe closet (aparador) were taken out. Its secret compartment/box was missing. And the lock of the aparador was destroyed. (TSN, October 12, 1978, pp. 15-17). When she went upstairs after putting her mother on a bed at the ground floor, she found the two (2) rooms thereat in disarray. She then caused the rooms and things photographed by a certain Ricardo Ileto (Exhibits "A" to "A-11"; TSN, October 12, 1978, p. 17). Later, Herminia went to Dr. Adela Cruz and pleaded [with] said doctor to issue a death certificate so that her mother could be embalmed. (TSN, Id., pp. 33-34).

On the same night, Herminia found a beach walk step-in (Exhibit "B") by the side of the cabinet near the door of their room downstairs, more or less one meter from where the victim was lying prostrate. (TSN, October 12,1978, pp. 24-25). Herminia was able to recognize the said step-in because of its color and size, as the other half of the pair she bought for her husband Arnedo but which she gave to Socorro de Joya, the wife of herein appellant, before Christmas of 1977 when she saw the old and wornout pair of slippers of the latter. (TSN, Ibid.). Appellant Pioquinto de Joya visited the wake only once. During the second day of the fourday wake, Herminia saw herein appellant Pioquinto de Joya enter the kitchen and peep under the cabinet of the (Valencia's) house. (TSN, Id.). On February 3, 1978, a post-mortem examination was conducted by Dr. Romulo Madrid, a medico-legal officer of the National Bureau of Investigation. Per examination, the cause of the death arrived by Dr. Madrid was "shock, secondary to punctured wound neck" (Exhibit "D-1") situated at the right side of the neck, just below the right ear wherein it went out thru and thru, opposite, almost in the same location, from one side of the neck to the opposite side. (Exhibit "D-2"). In its decision, the trial court became quite clear as to the factors which led to the judgment of conviction against appellant. These factors, as set out in the decision of the trial court, were the following: In the case at bar, the prosecution relied heavily on the circumstances surrounding the death of the victim as testified to by the witnesses and proven during the trial, also the dying statement of the deceased, which are: Herminia testified that two weeks before the incident the accused and the deceased quarreled over a bicycle which the former took from their house without the consent of the latter; that Exhibit "B" (step-in beach walk type) which was found near the cabinet one meter away from the body of the victim was identified by Herminia as the step-in that she gave to the wife of the accused and which she saw accused wearing on January 29, 1978 when she visited them in their house; the testimony of Gloria Capulong that she saw the accused in the afternoon of January 31, 1978 at around 3:00 p.m. in the yard of Herminia standing and holding a bicycle; the accused admitted, although his wife is the sister of the husband of Herminia he never visited the deceased during the four days that it was lying in state without any justifiable reason and contrary to the ordinary experience of man; last but most convincing is the dying statement of the deceased when her grandson Alvin asked her "Apo, Apo, what happened?" and she answered, "Si Paki", then she expired. When Alvin was asked during his testimony who is this Paki, he identified the accused. The accused during his testimony never denied that he is called Paki. The foregoing circumstances established during the trial plus the dying statement of the deceased leads only to one fair and reasonable conclusion, that the accused is the author of the crime. Analyzing the above portion of the decision, the elements taken into account by the court in convicting appellant De Joya of robbery with homicide may be listed as follows: 1. The dying statement made by the deceased victim to her grandson Alvin Valencia a 10year old boy: "Si Paqui"; 2. The quarrel, which, according to Herminia Valencia, daughter of the deceased victim, took place two weeks before the robbery and homicide, between the appellant and the deceased over the use of a bicycle which appellant allegedly took from the Valencia's house without the consent of the victim; 3. The rubber slipper, one of a pair, ("step-in beach walk type") which according to Herminia, she found near a cabinet in their house one (1) meter away from the body of the victim, and which Herminia identified as one of the pair that she had given to the wife of the accused the previous Christmas Season;

4. Accused was seen by one Gloria Capulong around 3:00 p.m. in the afternoon of 31 January 1978 in the yard of the Valencias, standing and holding a bicycle and doing nothing; 5. The statement of appellant that he did not visit the deceased during the four-day wake. We turn first to the dying statement made by the victim when the 10-year old Alvin Valencia asked his grandmother who was sprawled on the floor of their house drenched with blood: "Apo, Apo, what happened?" The deceased victim said: "Si Paqui". After uttering those two words, she expired. It is not disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must be noted at once, however, that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designed to designate the object of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must, moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you?" It has been held that a dying declaration to be admissible must be complete in itself. To be complete in itself does not mean that the declarant must recite everything that constituted the res gestae of the subject of his statement, but that his statement of any given fact should be a full expression of all that he intended to say as conveying his meaning in respect of such fact. 3 The doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's classic work: The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely apart of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only a portion of what he might have been able to tell. 4 (Emphasis supplied) The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. 5 It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply assumed that by uttering the words "Si Paqui", the deceased had intended to name the person who had thrust some sharp instrument through and through her neck just below her ears. But Eulalia herself did not say so and we cannot speculate what the rest of her communication might have been had death not interrupted her. We are unable to regard the dying statement as a dying declaration naming the appellant as the doer of the bloody deed. The other elements taken into account by the trial court are purely circumstantial in nature. When these circumstances are examined one by one, none of them can be said to lead clearly and necessarily to the conclusion that appellant had robbed and killed the deceased Eulalia Diamse. The quarrel over the use of the bicycle which was supposed to have taken place two weeks before Eulalia's death does not, in our view, constitute adequate proof of a motive capable of moving a person to slay another in such a violent and gory manner. Failure to prove a credible motive where no identification was shown at all, certainly weakens the case of the prosecution.

The testimony of Herminia Valencia about the single slipper that she found near or under the cabinet in the living room where Eulalia Diamse was slain, can scarcely be regarded as conclusive evidence that such slipper was indeed one of the very same pair of slippers that she had given to appellant's wife, who was also the sister of Herminia's husband. Rubber or beach, walk slippers are made in such quantities by multiple manufacturers that there must have been dozens if not hundreds of slippers of the same color, shape and size as the pair that Herminia gave to appellant's wife. And even if conclusive identification of the slippers had been offered, and it is assumed that appellant (rather than his wife) had worn those very slippers on that fatal afternoon, still the presence of that singular slipper did not clearly and directly connect the appellant to the robbery or the slaying. At most, under that assumption, the presence of that slipper in the house of the Valencias showed that the accused had gone to the house of the Valencias and there mislaid that slipper. We note in this connection, that appellant himself had testified that he did enter the house of the Valencias that afternoon, but after the killing of Eulalia Diamse had been perpetrated, and there had found many persons in the house viewing the body. The testimony of Gloria Capulong that she saw the accused in the afternoon of 31 January 1978 around 3:00 p.m. in the yard of the Valencias, standing and holding a bicycle and doing nothing is, by itself, not proof of any act or circumstance that would show that appellant had perpetrated the slaying or the robbery. The behaviour of the appellant, as testified to by Gloria Capulong, offers no basis for supposing that appellant, himself 72 years of age, had just slain an 88-year old woman by skewering her through the neck and had ransacked both floors of the Valencia house. Appellant's failure to present himself to pay his respects to the deceased or her immediate family during the four-day wake, does not give rise to any inference that appellant was the slayer of Eulalia Diamse. Appellant had explained that he had been busily at work, sewing and carrying on his trade as a tailor. Appellant, as already noted, had dropped in the Valencias' house in the afternoon Eulalia Diamse was killed and had viewed the body (before it was lying in state) along with several other persons. His reluctance or inability to participate in the formal wake is not necessarily a sign of guilt. We are unable to agree with the trial judge that such behaviour was "contrary to the ordinary experience of man" although respect for the dead is a common cultural trait of the Filipinos. In the Solicitor-General's brief, it is casually contended that the circumstantial evidence against appellant included: "the attempt on the part of appellant Pioquinto de Joya through his counsel to settle the case amicably." 6 We have examined the testimony that the Solicitor General pointed to in referring to a supposed attempt to settle the criminal charge amicably. That testimony, given by Arnedo Valencia, son-in-law of the deceased Eulalia Diamse and brother-inlaw of appellant Pioquinto de Joya, was as follows: Q You also testified that before the release of the accused from the municipal jail, you had a conversation with him, is that right? A Yes, air. Q What was this conversation about? A He called for me and took me to his counsel Atty. Aguilar and according to him if only Atty. Aguilar can talk with me, everything will be settled. Q Have you seen and talked to this Atty. Aguilar? A Yes, I went with him to Manila, sir. Q When was this? A The time he was fetched out of jail. Q You are referring to the municipal jail? Q Did he tell you he can settle this? A Yes, sir. Q What did you and Atty. Aguilar discuss when you finally was able to see Atty. Aguilar? A When I went there, I was introduced to Atty. Aguilar and Atty. Aguilar asked me as to what I liked to happen. Q What did you say? A I said if it will be settled, well and good. Q Anything else that transpired? A He even told me if I might be able to convince both my wife and her sisters.

A He was very certain that he can settle this, the very reason why he told me because I was very certain as to what happened. Q Was the accused Pioquinto de Joya present when you were discussing this with his lawyer? A Yes, sir

Q He heard what his, lawyer was telling you? A It is possible because he is only one or two meters distance away. Q Did the accused say anything? A None, sir. (Emphasis supplied)

We find the above testimony quite impalpable and inconclusive so far as a supposed attempt of appellant, through his counsel, to offer a compromise on the criminal charge is concerned. We are aware of the provision of Section 24 of Rule 130 of the Rules of Court which provides that Sec. 24. Offer to compromise not admission. An offer of compromise is not an admission that anything is due, and is not admissible in evidence against the person making the offer. However, in criminal cases which are not allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Emphasis supplied) We do not, however, feel justified in concluding from the above testimony from a member of the (extended) family of the deceased victim that "an offer of compromise" had been made "by the accused" nor that "an implied admission of guilt" on the part of the appellant may be reasonably inferred in the instant case. The trial court itself made no mention of any attempt on the part of appellant to settle the criminal case amicably through the defense counsel; we must assume that the trial court either did not believe that appellant had tried to compromise the criminal case or considered that appellant could not fairly be deemed to have impliedly admitted that he had indeed robbed and killed Eulalia Diamse. A much higher level of explicitness and specific detail is necessary to justify a conclusion that an accused had impliedly admitted his guilt of a crime as serious as robbery with homicide. The totality of the case made out against appellant De Joya thus consists of an incomplete, aborted, dying declaration and a number of circumstances which, singly or collectively, do not necessarily give rise to a compelling inference that appellant had indeed robbed and slain Eulalia Diamse. We consider, after prolonged scrutiny, that the sum total of the evidence in the instant case is insufficient to induce that moral certainty of guilt which characterizes proof beyond reasonable doubt. The conscience of the Court remains uneasy and unsettled after considering the nature and speculative character of the evidence supporting the judgment of conviction. The Court must, accordingly, hold as it hereby holds that appellant's guilt of the crime of robbery and homicide was not shown beyond reasonable doubt. ACCORDINGLY, the decision of the trial court dated 16 May 1986 is hereby REVERSED and appellant Pioquinto de Joya is hereby ACQUITTED on grounds of reasonable doubt. It is so ordered.

G.R. No. L-45470 February 28, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GREGORIO LAQUINON, alias "JOLLY", defendant-appellant. CONCEPCION, JR., J.: Accused Gregorio Laquinon was charged with the crime of murder in the Court of First Instance of Davao del Sur for the killing of Pablo Remonde, coated as follows: That on or about November 13, 1972, in the Municipality of Hagonoy, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, with treachery and evident premeditation, armed with a gun and with intent to kill, did then and there willfully, unlawfully and feloniously shoot one Pablo Remonde with said weapon, inflicting upon the latter wounds which caused his death. After the trial, the lower court rendered a decision finding the accused guilty of the crime charged and sentenced him as follows: IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of the crime of murder, and imposes upon him the penalty of reclusion perpetua (Art. 248, Revised Penal Code); to indemnify the heirs of the deceased in the sum of P 12,000.00 and to pay the costs. From the foregoing judgment, accused Gregorio Laquinon interposed the present appeal. The People's version of the case is as follows: On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio captain of Clib, Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short while he heard gunshots coming from the bank of a river some three hundred meters to the south of his house (pp. 4-6, tsn, Dec. 8, 1975). Then, his brother, Leocario Buat, arrived and told him that a man was shouting for help at the bank of the river. Samama Buat told his brother to call the barrio councilman. Thereafter, he proceeded to the place where the unidentified man was. His brother, Leocario and the barrio councilman also arrived there. Samama Buat found the man lying on the sand and asked who he was. The man answered, "I am Pablo Remonde" (pp 7-10, Id.). Remonde's two hands were tied on his back. He was lying face down (p. 10, Id). Samama Buat then took the "ante mortem" statement of Pablo Remonde. He asked him who he was to which he answered that he was Pablo Remonde. Samama Buat asked "who shot you" and Remonde said that it was Gregorio Laquinon. He asked Pablo Remonde whether from the gunshot wounds he suffered he would survive to which the victim answered "I do not know" (pp. 11, 19, 21, Id.; see also Exh. A, Folder of Exhibits). After that, barrio captain Buat went to the municipality of Hagonoy and reported to Vice Mayor Antonio Biran the shooting of Pablo Remonde. Vice Mayor Biran went to the scene of the incident and asked the victim who shot him to which the latter answered that he was shot by Gregorio Laquinon (pp. 21 A to 23, tsn, Dec. 8, 1975). Pablo Remonde was placed on a jeep of the Vice Mayor and brought to the hospital (p. 23, Id,). Pablo Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where he was attended to by Dr. Alfonso Llanos. Dr. Llanos performed an operation on the victim from whose body a slug was recovered (pp. 15-16, tsn, Jan. 26, 1976; Exh. B). Pablo Remonde died in the hospital on November 16, 1972 because of bullet wounds (pp. 17-20, tsn, Jan. 26, 1976; see also clinical chart. Exh. C, Folder of Exhibits). The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his defense, as follows:

In his defense, the accused declared that he was a KM member; that he was ordered by one Noli Cabardo, then their CO, to fetch Pablo Remonde; he requested one Cristino Nerosa to go with him, and matter of factly, they brought Remonde to the place where said CO Cabardo with ten companions, was waiting at the riverbank; that before reaching the place, Nerosa separated from him and he alone brought Remonde to Cabardo. There Cabardo confronted Remonde why, having been commanded to buy some provisions in Matanao, he (Remonde) never returned; to which Remonde answered that he spent the money 'in drinking and gambling; when upon Cabardo got mad and as Remonde attempted to escape, he (witness) heard a shot which must have been fired by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had that evening a Cal. 22 paltik; that after the shot he saw Remonde sprawled on the ground, and then Cabardo ordered them to go to the mountain as in fact they did; that two days later during the day, their mountain camp was raided by the PC and Cabardo and two others were killed while he (witness) was able to escape and went to Magpet, North Cotabato, and engaged in farming therein with his relatives; but believing that as a KM member he 'c mmitted something,' he surrendered to the Davao PC Barracks in May, 1975 (Exhibit '2'), where up to now he is being confined. The accused-appellant prays for the reversal of the appealed judgment on the ground that the lower court erred in finding him guilty of the crime charged on the basis of the statement attributed to the deceased Pablo Remonde which reads: Q State your name and other personal circumstances. A Pablo Remonde y Saballa, 24 years old, laborer and resident of Pob. this mun. Q Who shot you? A Mr. Laquinon, a person who ran for councilor before the ticket of Liberal last local election and son of Suelo Maravllias whose name I don't know. Q Why you were shot by said persons above? A They are suspecting me that I'm an informer of Vice Mayor Viran regarding KM . Q Do you think you'll die with your wound? A I don't know sir.

The accused-appellant argues that the foregoing statement is inadmissible in evidence as an ante-mortem declaration because it was not executed under a consciousness of an impending death; and that the deceased was not a competent witness. The fact that the deceased had named the son of Suelo Maravillas who turned out as Cristino Nerosa as one of those who shot him in his dying declaration does not make the deceased an incompetent witness. Nor does it render said dying declaration incredible of belief. The testimony of the accused that he and Nerosa separated and that he alone brought the deceased to Noli Cabardo is not corroborated. It may be that Nerosa was with the accused when the latter shot the deceased, as stated in the dying declaration, but that the accused testified that Nerosa was not with him when he brought the deceased to Noli Cabardo in order to free Nerosa from criminal liability. Nor does the testimony of Barrio Captain Samama Buat that the place was dark and that the victim had told him that he was shot by members of the KM make the deceased an incompetent witness. On the contrary, it strengthens the statement of the deceased since the accused is a member of the KM. But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem declaration since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the deceased believed himself in extremist, "at the point of death when every hope of recovery is extinct, which is the sole basis for admitting this kind of declarations as an exception to the hearsay rule." 1

It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused. On the whole, We are satisfied with the findings of the trial court that the accused was responsible for the killing of Pablo Remonde. We cite with approval the following observations of the trial court: Indeed, the Court cannot believe that CO Cabardo did the killing as related by the accused for the following reasons: First, when the deceased was allegedly delivered to CO Cabardo, he was already hand-tied at his back, that the place of the shooting was "covered by thick bushes and beside the river", and that CO Cabardo was with ten men excluding the accused; under these circumstances, it is hard to believe that the deceased, with all those overwhelming handicap, would attempt to flee. Second, if the deceased truly tried to flee, the logical thing he would do would be to flee away from and not towards Cabardo; in doing the former he would turn to his right or to his left or towards his back; if he fled to his left or right, or towards his back, he would be exposing one side of his body, or his back, and when fired upon in that position he would have been hit on one side of the body or at his back. The evidence as testified to by Dr. Llanos however, shows that the deceased had onlyone wound a gunshot wound, in the abdomen; this shows he was fired upon frontally, the bullet going through and through the intestines and lodged, presumably in the bony portions of his back, that is why the slug (Exhibit "B") was recovered. The accused's version, therefore, that the deceased tried to flee is hard to believe for being against the physical facts. Now, if the accused is innocent, why should he relate such an incredible version? Oh what a tangled web they weave when first day practice to deceive. With these observations, the Court cannot believe that the accused really delivered the deceased to CO Cabardo and that it was Cabardo who shot him. As testified to by him, their mountain camp was raided by the PC two days after the incident, as a result of which raid Cabardo and two of their companions were killed. The accused himself was able to escape, went to hide in a relative's farm in faraway Magpet, North Cotabato, did farming there until one day in May, 1975, repentant that, as a KM member, he had "committed something", he finally surrendered to the PC Barracks in Davao City. Cabardo, may he rest in peace, having gone to the other world, and can no longer speak in his behalf, it is not unlikely that the accused conceived of this outlandish defense by pointing to CO Cabardo, to free himself from responsibility. Most important to remember on this point is that at the time the deceased grade his "dying" statement, Cabardo was still alive; that per the accused himself, he had no previous differences with the deceased or with the barrio captain; and that from the prosecution witness Bo. Capt. Buat when he took the statement of the deceased, the deceased was feeling strong, surely, under such circumstances it is hard to believe that the deceased would name the accused with whom he had no quarrel and Nerosa as his killers if that was really not the truth. Accused is guilty beyond reasonable doubt of the crime of murder qualified by treachery. The victim was apparently shot while his two hands were tied at his back. Accused, in shooting the victim, obviously employed means or force in the execution of the offense which tended directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased is increased to P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With costs against the appellant. SO ORDERED.

G.R. No. L-29365 March 25, 1983 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO ALCOBER GUERON and EMILIO MAGNO, defendants, TEODORO ALCOBER GUERON,defendant-appellant, ABAD SANTOS, J.: In the Court of First Instance of Samar (now Regional Trial Court), an information for "double murder" was filed against TEODORO ALCOBER GUERON and EMILIO MAGNO, Docketed as Criminal Case No. 6996, the information reads: That on or about the 7th day of October, 1964, in the Municipality of Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and helping one another with one Jesus Magno alias Osing, who is still at large, with intent to kill, with treachery, evident premeditation, armed with guns and at night time, did then and there wilfully, unlawfully and feloniously attack, assault and shoot Bonifacio Dayoc and Dalmacio Batica with said guns which the accused had conveniently provided themselves for the purpose, thereby inflicting upon said Bonifacio Dayoc and Dalmacio Batica several wounds on the different parts of their bodies which wounds caused their death. The trial court rendered the following judgment: THEREFORE, judgment is hereby rendered finding and declaring the defendants Teodoro Alcober Gueron and Emilio Magno guilty beyond reasonable doubt as principals of the crime of double murder as charged, with one aggravating and no mitigating circumstance attending; and convicts each one of them to RECLUSION PERPETUA, with the accessory penalties, indemnify, jointly and severally, the heirs of Bonifacio Dayoc ten thousand pesos, and those of Dalmacio Batica also ten thousand pesos, and pay the costs. Only Teodoro Alcober Gueron appealed. Pending appeal he has been confined at the New Bilibid Prisons. The People's version of the facts is as follows: On August 9, 1964, the spouses Bonifacio Dayoc and Purificacion Comillor were in barrio Cabacungan, Sta. Rita, Samar, to witness the cockfight and to buy salted fish (pp. 65, 66, t.s.n., Rojas). There, Bonifacio met Emilio Magno, who was from Burauen, Leyte, and was told that he was going to organize a 'gang' composed of youngsters from Bagolibas, Cabacungan, Pagsulhugan and Crossing (p. 66, t.s.n., Rojas). Bonifacio replied that Emilio was just a newcomer in the place and a member of his family had just died and yet he was stirring up trouble (p. 66, t.s.n., Rojas). Emilio retorted, 'I know you are Borenes (p. 66, t.s.n., Rojas). 'I am not Borenes, but I am Bonifacio. Don't call me Borenes,' answered Bonifacio (P. 66, t.s.n., Rojas). Emilio rejoined. 'Let us know each other,' and extended his hand to shake Bonifacio's as he repeated,' Let us know each other, Borenes' (p. 66, t.s.n., Rojas). Bonifacio reiterated, 'I am not Boranes, I am Bonifacio' and said, 'Let us consume the whole tuba' (p. 66, t.s.n., Rojas). After finishing his drink, Bonifacio struck Emilio with his glass hitting him on the face (p. 66, t.s.n., Rojas). Then he went up the table and kicked Emilio on the head who thus fell flat on the face (p. 66, t.s.n., Rojas). Bonifacio ordered Emilio to get up and fight, but the latter did not; instead, he ran home and got a bolo (p. 66, t.s.n., Rojas). Bonifacio in turn got his own (p. 66, t.s.n., Rojas). Emilio struck Bonifacio but did not hit him; Bonifacio retaliated (p. 67, t.s.n., Rojas). Then Emilio ran home and did not leave his house anymore (p. 67, t.s.n., Rojas). Because Emilio refused to come down, Bonifacio went home with his wife (p. 67, t.s.n., Rojas). In the morning of October 7, 1964, Teodoro Gueron came to the house of Bonifacio Dayoc to sell him coconuts and to borrow P 60 from him (p. 67, t.s.n., Rojas). Because Bonifacio had not yet received his salary, he told Teodoro to meet him in the evening at sitio Crossing as he might be able to get his pay from Almendras Enterprises, where he was working, and give him the money (p. 68, t.s.n., Rojas).

The next morning, somebody informed Bonifacio's wife that her husband (Bonifacio) was dead on the road (p. 68, t.s.n.,Rojas). When she went to the place to verify, she found him lying lifeless (p. 68, t.s.n., Rojas). Upon inquiring from his companion what happened to both of them, Dalmacio Batica told her they were shot by Teodoro Gueron, Jesus Magno and Emilio Magno the night before (p. 68, t.s.n., Rojas). At about 9:30 o'clock in the evening of October 7, 1964, while Antonio Beron, who was employed as scaler at the logging camp of F.M. Cojuanco Enterprises in Guintigian was afoot on the way home to barrio Bagolibas, Santa Rita, Samar, he heard two gun reports after reaching sitio Crossing (pp. 27, 28, 29, 30, 31, t.s.n., Rojas). He continued walking, wondering whether somebody was hunting (p. 31, t.s.n., Rojas). A little later, he met two persons walking hurriedly, whom he recognized to be Teodoro Gueron, and Jesus Magno, when he focused his flashlight at them the former trying to conceal something, (pp. 31, 34, 35, 36, 37. t.s.n., Rojas; Exhibit F, p. 51, rec.). Teodoro Gueron was a former employee of the logging company where he worked, and Jesus Magno was his friend (pp. 31, 37, t.s.n., Rojas). When he asked where they came from, neither of them answered him but kept on walking hurriedly (p. 32, t.s.n., Rojas; Exhibit F, p. 51, rec.) Early next morning, Beron's mother-in-law Valentina Ronda, told him two persons had been shot near Bagolibas, Sta. Rita, Samar and when he asked who they were, she answered it was Bonifacio Dayoc and Dalmacio Batica (p. 33, t.s.n., Rojas). After a hurried breakfast, Beron repaired to the place and found Bonifacio dead being covered with a piece of cloth by his wife (p. 33, t.s.n., Rojas). When he inquired about Dalmacio, he was told he was at his house where he was lying wounded (p. 33, t.s.n., Rojas). In the evening of October 7, 1964, after her husband, Jesus Q. Batica, Sr., a teacher in barrio Bagolibas, Sta. Rita, Samar, had returned home from school where he prepared the questions to be given during an examination, his wife, Eustaquia A. Batica, also a teacher in the same school, heard the barking of dogs in front of their house (pp. 5, 6, 18, 19, t.s.n., Rojas). When she opened the window and focused a flashlight toward the road, Eustaquia saw Emilio Magno, whom she knew since about a year before because he used to pass by in going to sitio Crossing, wearing a red shirt, black pants and a hat, and carrying a gun in his right hand running (pp. 19, 21, 24, 25, t.s.n.,). At once, she closed the window because she became afraid when she saw the gun (p. 19, t.s.n., Rojas). While already in bed, Eustaquia told her husband that she saw Emilio Magno pass by with a gun and that while he was away she heard two gun reports, faintly coming from the junction of the town of Basey, but her husband told her not to mind it (p. 6, 7, 12, 20, t.s.n., Rojas). 'Then they thought of his son and her stepson Dalmacio Batica, whose house was about 30 meters away from theirs, if he was at home, and surmised that he was out because they could not hear him coughing (pp. 7, 20, t.s.n., Rojas). Afterwards both fell asleep (pp. 7, 21, t.s.n., Rojas). Early in the morning of the next day, October 8, 1964, while the spouses Bernardo Rama and Pacita Rama were on the way to the farm owned by Jesus Batica, Sr., to plant rice, they found his son Dalmacio on the side of the highway lying on his left side, wounded and bleeding (pp. 46, 47, 59, 60, 61, t.s.n., Rojas). When Bernardo asked what happened to him, Dalmacio replied that he and Bonifacio Dayoc were shot the night before by Teodoro Gueron, Emilio Magno and Jesus Magno (pp. 48, 49, 60, t.s.n., Rojas). Bernardo saw Bonifacio about 25 meters away already dead and bathed in his own blood (pp. 50, 51, t.s.n., Rojas). Dalmacio then requested the spouses to inform his father of what had befallen him (pp. 47, 62. t.s.n., Rojas). The spouses Jesus Batica, Sr. and Eustaquia A. Batica had just awakened when Bernardo and his wife arrived at their house telling them that Dalmacio was in the farm; that he told Bernardo and his wife to inform them that he was shot by Teodoro Gueron, Jesus Magno and Emilio Magno; that he could not walk by himself alone, hence he should be fetched; and that Bonifacio Dayoc was in the same place (pp, 8, 12, 21, 51, 59, 62, 64, t.s.n., Rojas). Jesus Sr. lost no time in ordering his son, Jesus, Jr. to get a hammock and, together with him, Romeo Badaa, Jesus Yerro, Dominador Armada, Francisco Yerro, a rural policeman and other, repaired to the place where Dalmacio was (pp. 8, 22, t.s.n. Rojas). After placing him on the hammock. they brought him to his (Dalmacio's house where his brother Jesus, Jr., the barrio captain, took his statement in writing, which was recorded by his own father, Jesus, Sr. in the typewriter (pp 9, 10, 22, 23, 62, 63, t.s.n., Rojas; Exhibits A, A-1 pp. 3, 47, rec.), as follows:

Q What happened to you? A Teddy (Teodoro Alcober), Osing (Jesus Magno) and his brother Eming (Emilio Magno) shot me. Q Who was with you when you were shot at? A Boning (Bonifacio Dayoc). Q What was your position when you were together? A We were breast to breast. I was at his right side. Q Where was the one who shot you? A Above the road at the throught cut at the avocado plantation. Q How far to you? A More or less five Brazas. Q Do you know that Boning is dead? A No. Q Did you notice if Boning was hit when you were fired at? A I did not. Q Why did you know the one who shot you? A Because when we were flashlighted at I focused my flashlight at them. Q What happened to your flashlight? A I did not know the moment I was hit on my thighs. Q Where else were you hit? A At my left arm and at my back. Q Why were you there at our rice plantation? A Because I managed to crawl slowly. Q Why did you not go home? A I could not resist due to my wounds. Q Do you have personal grudges with those who shot you?

A None. Q On what side were the ones who shot you? A On our left side, near our avocado plantation. Q What time were you shot? A About 10:00 o'clock in the evening, October 7, 1964. Q Where did you come from? A From Crossing at Madi Tarcing. Q What did you do in your Madi Tarcing? A I paid my debt. Q You only reached Crossing? A No. Q Where else did you go? A We went to Landing, drew our salary with Boning. Q What time did you go to Landing? A About 4:00 o'clock in the afternoon, October 7, 1964. Q Do you have any grudge with those persons who shot you? A None. Q Did you quarrel with them? during your trip? A None. Q You and Boning, did you not quarrel? A None. Q Will you die of your wounds? A I cannot ascertain. Q What do you feel of your wounds? A I feel weak and I am thirsty. Q Can you sign these, your answers? A Yes, sir." (Exhibit A-1, p. 47, rec.)

Afterwards they brought him to the provincial hospital in Tacloban, where he expired at 9:20 o'clock in the morning of the next day, October 8, 1964 (Exhibit D, p. 19; rec.; Exhibit E-I, p. 50, rec.). Cause of death was toxemia and shock due to multiple gunshot wounds (Exhibits D, D-1, p. 19, rec.) According to the autopsy report, the cause of Bonifacio Dayoc's death was severe internal hemorrhage due to the injury of the right auricle of the heart (Exhibits B, B-1, pp. 15, 16, rec.; Exhibit C, p. 15, rec.). (Brief, pp. 2- 9.) The appellant claims that: I. THE LOWER COURT ERRED IN ADMITTING THE AFFIDAVIT OF DALMACIO BATICA AS PART OF THE RES GESTAE. II. THE LOWER COURT ERRED IN RESOLVING DOUBTS AGAINST THE ACCUSED. III. THE LOWER COURT ERRED IN CONSIDERING THE AGGRAVATING CIRCUMSTANCE OF NIGHT TIME AGAINST THE ACCUSED. None of the witnesses for the prosecution actually saw Gueron and Magno in the act of shooting Dayoc and Batica. The testimonial evidence in respect of the shooting is purely circumstantial with the exception of Exhibit A the affidavit of the deceased Dalmacio Batica-which has been reproduced above. In appreciating Exhibit A, the trial court said: It is indeed clear that the statements contained in Exhibits "A", having been given by the victim soon after the incident, at the time when he had not yet the least chance of twisting the truth, especially at the critical condition in which he was then found, informing and describing the manner of assault and naming the assailants, were the facts of the incident. Exhibit "A", therefore, shall be, as it is hereby admitted as part of the declaration of Jesus Batica, Sr., and the statements therein contained as part of the res gestae, and valid as proof. The appellant now claims that it was error for the trial court to regard Exhibit A as part of the res gestae. We do not agree. The hearsay rule excludes evidence that cannot be tested by cross- examination. Exhibit A would normally be classified as hearsay because the one who executed it could not be cross-examined on it during the trial; he was dead. But there are exceptions to the hearsay rule. One of them is that provided in Sec. 36 of Rule 130, Rules of Court, as follows: Sec. 36. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as a part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as a part of the res gestae. Bearing in mind the circumstances narrated above under which Exhibit A was executed, there can be no doubt that it is admissible in evidence as part of the res gestae. (People vs. Portento, 48 Phil. 971 [1924]; People vs. Reyes, 52 Phil. 538 [1928]; People vs. Quianzon, 62 Phil. 162 [1935]; People vs. Reyes, 82 Phil. 563 [1949]; People vs. Mascarias, 94 Phil. 293 [1954].) Another exception to the hearsay rule is the dying declaration. Sec. 31 of Rule 130 provides: Sec. 31. Dying Declaration. The declaration of a dying person made under a consciousness of an impending death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.

Exhibit A is admissible in evidence as an ante-mortem declaration considering that it was made under consciousness of impending death; the declarant died the next day from the gunshot wounds he sustained. (People vs. Mascarinas, 94 Phil. 293 [1954]; People vs. de Ananias, 96 Phil. 979 [1955]; Cruz vs. People, 71 Phil. 350 [1941]; People vs. Alfaro, 83 Phil. 85 [1949].) The second assignment of error is but a consequence of the first and does not have to be discussed. The trial court said that "The assault was with treachery which qualified the killing as double murder, as the means employed by the assailants, with the use of firearm, insured the execution of the assault without risk to themselves from the defense which the victims could have made. In the commission, the presence of the aggravating circumstance of night time is evident, the offenders having taken advantage of the darkness to commit it with greater facility and/or impunity. " The appellant questions the appreciation of nocturnity. We agree for nocturnity is absorbed by alevosia (People vs. Pardo, 79 Phil. 568 [1947]; People vs. Balagtas, 68 Phil. 675 [1939]; People vs. Ballocanag, 83 Phil. 569 [1949]; People vs. Pengzon, 44 Phil. 224 [1922]; U.S. vs. Buncad, 25 Phil. 530 [1913]; People vs. Alfaro, 83 Phil. 85 [1949]; U.S. vs. Empeinado, 9 Phil. 613 [1908]; People vs. Enot, L-17530, Oct. 30,1962, 6 SCRA 325). Two murders were committed which means there must be a penalty for each murder. Absent aggravating and mitigating circumstances the appropriate penalty is reclusion perpetua for each murder. Moreover, the civil indemnity should be P 12,000.00 for each death, WHEREFORE, the judgment of the trial court convicting the, appellant is affirmed but modified in that he shall suffer the penalty of two (2) reclusion perpetua and indemnify the heirs of the two deceased in the amount of Twelve Thousand (P12,000.00) Pesos each. Costs against the appellant. SO ORDERED,

G.R. No. L-31782 December 14, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO LANZA, defendant-appellant. Appeal from the decision of the Court of First Instance of Zamboanga del Norte, Criminal Case No. 4626, finding appellant Teodoro Lanza guilty beyond reasonable doubt of the crime of Murder and sentencing him to suffer the penalty of reclusion perpetua with the accessories of the law; to indemnify the lawful heirs of the deceased in the sum of P12,000.00, without subsidiary imprisonment in case of insolvency; to pay the widow of said deceased the sum of P2,000.00 as moral damages and P500.00 as hospital and burial expenses; and to pay the costs. In a complaint filed by the Acting Chief of Police of Dipolog, Zamboanga del Norte, dated October 10, 1966, appellant Teodoro Lanza was charged with the crime of Murder, as follows: That on or during the 8th day of October, 1966, at around 1:00 A.M. at the Poblacion, Dipolog, Zamboanga del Norte, Philippines and within the preliminary jurisdiction of this Honorable Court, the above-named accused armed with a knife, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack and wound therewith one LEONARDO ZAMORAS at the back and as a result of which the said Leonardo Zamoras died a few days later. ALL CONTRARY TO LAW, with the qualifying circumstance of evident premeditation and the generic aggravating circumstance of nighttime. (CFI Record, p. 1). Thereafter, or on February 8, 1967, the Provincial Fiscal of Zamboanga del Norte filed the corresponding Information against herein appellant, who was subsequently arraigned on May 2, 1967. He entered a plea of not guilty. The prosecution's primary evidence against herein appellant is the ante mortem statement of the victim (Exhibit "A"), taken by Cpl. Fortunato Salaveria on October 8, 1966 at the North General Clinic of Dipolog, Zamboanga del Norte, which reads as follows: Q. What is your name? A. Leonardo Zamoras, 34 years old, married and a resident of Galas, Dipolog, Zamboanga del Norte. Q. What happened to you? A. I was stabbed. Q. Who stabbed you? A. I was stabbed by a person who followed me from the Municipal Building. Q. In what particular place were you stabbed? A. At the Shell gasoline station. Q. Do you know the person who stabbed you? A. I can recognize him by face. Q. If I present the person to you can you recognize him? I am presenting to you Teodoro Lanza is he the very person who stabbed you last night, October 7, 1966? A. Yes, sir. Q. Did you have any misunderstanding prior to the incident? A. None, sir. Q. What must have been the motive of stabbing you, then? A. I believe he resented (it) when I accidentally stepped on the shoulder of his wife who happened to be lying on the concrete floor of the Municipal Building. Q. How many times did he stab you? A. Only once.

Q. Do you think you will survive as a result of your wounds?

A. It all depends. (CFI Record, pp.166168).

Fortunato Salaveria, Police Sergeant of the Dipolog Police Force, testified that at around 10:00 o'clock in the morning of October 8, 1966, he was ordered by the Acting Chief of Police, Ciriaco Gonzales, to take the ante mortem statement of one Leonardo Zamoras, who had been -,tabbed and was then at the North General Clinic at Torno, Dipolog, Zamboanga del Norte. Upon arrival at the aforesaid clinic, he found Leonardo Zamoras in critical condition. He then took the ante mortem statement of Leonardo Zamoras (Exhibits "A", "A-1 " and "A-2") by writing in longhand the questions and answers of the victim. This was done in the presence of several persons, including Jose Zamoras, brother of the victim. Afterwards, Leonardo Zamoras affixed his left and right thumbmarks on theante mortem statement. He affirmed that all the answers therein were gived by Leonardo Zamoras. P.G. Sales, a nurse at the clinic signed the statement as a witness to its execution (Exhibit "A-8"). Salaveria further testified that while taking the victim's statement, he called up the Chief of Police and requested him to bring the accused to the clinic for Identification by the victim; that at that time Teodoro Lanza was already being detained at the municipal jail of Dipolog as a suspect in the stabbing; that when appellant was brought infront of the victim, the latter Identified him as the very same person who stabbed him. On cross examination, this witness stated that when he arrived at the clinic, the victim was still alive and lying in bed, with his eyes closed; that he called the victim by name, Identified himself and when the latter agreed, he took the statement iii the presence of several relatives of the victim. Basilia Luna Vda, de Zamoras, widow of the victim, testified for the prosecution, stating that in the morning of October 8, 1966, while she was in her house, she was informed by her brotherin-law, Artemio Zamoras, that her husband was at the North general Clinic. When she went to the clinic, she found her husband lying on the bed. He was feverish and his clothes were bloody and he had a wound on the back. She likewise Identified the shirt worn by her husband on the night of the incident, showing the hole (Exhibit "C") allegedly caused by the stab wound. Jose Zamoras, brother of the deceased, corroborated policeman, Salaveria's testimony, stating that he stayed in the North General Clinic until the following day and was present when Cpl. Salaveria took the ante mortemstatement of his brother; that while the statement was being taken, he was about one-half meter from Cpl. Salaveria and Leonardo Zamoras; that when asked who stabbed him, Leonardo Zamoras pointed to Teodoro Lanza, who was present; that at that time, the condition of his brother was "not so serious"; that the ante mortemstatement was taken at around 10:00 o'clock in the morning of October 8, 1966, and his brother died on October 9, 1966, at about 3:00 o'clock in the afternoon. When asked whether his brother was asked each of the questions appearing on the ante mortem statement and whether his brother answered the same, this witness replied in the affirmative. On cross examination, he stated that his brother could not talk from 1:00 o'clock dawn until he was given dextrose that morning; that at around 9:00 o'clock his brother could already talk a little; and that when their sister, Elma Zamoras, inquired as to who was responsible for his wound, he answered that it was a man who had followed him from the municipal building. Dr. Jose Noriega, the surgeon who attended to the victim, testified that the latter was in a state of shock when admitted to the hospital at about 1:40 a.m. on October 8, 1966; that the victim was able to say that he was stabbed and to indicate the painful part of his body, but thereafter he remained incoherent until his condition was gradually improved by blood transfusion and the administration of medical remedies; that his blood pressure was revived and returned to normal only at about 1:00 o'clock in the afternoon of the same day; that because of such improvement he was immediately operated upon;

that in the course of the four-hour operation, it was found that there were fatal injuries on the left kidney and fatal injuries on the great vessels of the mesentery; that the victim died twenty four hours after surgery due to secondary hemorrhage or cerebral embolism; and that he issued a certificate as to the cause of death of Leonardo Zamoras. Ciriaco D. Gonzales, Acting Chief of Police of Dipolog, confirmed the fact that although appellant denied having stabbed Leonardo Zamoras, he nevertheless admitted to him that he followed the victim along Rizal Avenue when his wife complained to him that the victim had stepped on her while she was lying on the floor of the municipal building. Appellant, however, explained that he was not able to overtake the deceased. He further testified that shortly before 1:00 o'clock in the afternoon of October 8,1966, Cpl. Salaveria informed him by telephone that the victim was conscious and could talk. Consequently, he brought the accused to the clinic for Identification by the victim. When they arrived in the hospital there were several civilians. He also saw Cpl. Salaveria, Cpl. Calibo and Pat. Limbaga in the premises. He declared that the victim recognized him. When he asked the victim whether he could Identify his assailant, the latter answered in the affirmative. He then brought the appellant inside the room, and in the presence of all the people present the victim pointed to the appellant as the person who had stabbed him. This witness likewise confirmed that Cpl. Salaveria asked the questions and the victim, Leonardo Zamoras, gave the answers appearing in the ante mortem statement, and that they both spoke in Cebuano, which was translated into the English language by Cpl. Salaveria. Further, he attested to the fact that the thumbmarks appearing on the statement were those of Leonardo Zamoras, and that he was present when the same were affixed. Vicente Limbaga, formerly municipal policeman of Dipolog, Zamboanga del Norte, testified that he served in such capacity up to October 21, 1967; that at about 1:30 in the early morning of October 9, 1966, Leonardo Zamoras arrived at the municipal building where he was detailed as guard and reported to him about the disappearance of his Leonardo Zamoras') car; that after making such report, Leonardo Zamoras went down to the ground floor of the municipal building; that not long after, he heard a commotion and immediately went downstairs and found many people lying on the floor of the municipal building because it was the town fiesta of Dipolog; that when he inquired what was the cause of the commotion one Luisa, the wife of Teodoro Lanza, told him that a certain short and stocky man passed by and stepped on her foot while she was lying on the floor, and he tried to hold her shoulder and signalled her to go to a room with him and thus caused the commotion. When he asked her why she did not report the matter to him so the person could be investigated, she answered: 'Well, anyway, all would be known latter because my husband followed him. Not long after, Teodoro Lanza returned and he observed that Lanza appeared restless, kept moving from one place to another, continued whispering something to Ms wife, could not sleep and repeatedly went to the comfort room. Afterwards, he received a report that Leonardo Zamoras had been stabbed near the Shell gasoline station. Suspecting that Teodoro Lanza had something to do with the stabbing, he took Lanza into his office. He recorded the incident in the police blotter and conducted an investigation of the accused. The accused was again investigated by the Acting Chief of Police. The defense presented in evidence the testimonies of Pat. Edgardo Maginsay and accused Teodoro Lanza, as well as various documentary evidence. Pat. Edgardo Maginsay of the Dipolog Police Force testified that since February 1966, he has been the custodian of the police blotter of the Dipolog Police Force; that he was the one who recorded the entries in the police blotter for October 8, 1966; that said entries were made from the records of the night blotter, which was in the care of the building guard; and that therefore, the entries in the night blotter and of the police blotter are the same. Appellant Teodoro Lanza alleged that on the night in question he was sleeping, together with his family, inside the municipal building of Dipolog, his livelihood being that of a "feriante" and he was there to maintain the shooting gallery and some gambling devices inside the plaza where the "feria" was being held. He declared that after midnight, he was awakened by two policemen and brought to the office of the Chief of Police where he was asked whether he had gone out of the building or not.

When he replied that he had not, he was brought and confined inside the municipal jail. Later the following morning he was investigated by the police sergeant after which he was brought to the hospital by the Chief of Police and one Pat. Centino. He was taken inside the operating room, presented before a wounded man for Identification, but the latter, whose eyes were closed, could not Identify him. After staying inside the operating room for half an hour, he was returned to the municipal building. In his brief, appellant stated that he alleged ante mortem statement could not have been given by the victim as he was not in a position at the time of the alleged confrontation either to talk to the investigators or to Identify his alleged assailant, and assuming that the ante mortem statement is genuine, the same is inadmissible as evidence of a dying declaration because at the time of its execution, the victim had expectations or hopes of recovery. Appellant makes capital of the testimony of Dr. Jose Noriega that from 8:00 o'clock in the morning to 12:00 noon of October 8, 1966, the victim was still bleeding and in a state of shock; the declaration of the widow, Basilia Luna Vda. de Zamoras, that her husband could not talk to her while he was on the hospital bed; and the statement of Jose Zamoras that upon seeing his brother he called his name but the latter did not answer. These arguments are not supported by the record. Counsel for the appellant cited portions of testimonies out of context of the entire declarations. Thus, while Dr. Jose Noriega admitted that the witness was "semi-conscious" at the time of his admission, he was positive that the victim was able to tell him that he was stabbed. He even complained of pain on the abdomen. He likewise stated that the condition of the victim improved to such a degree that he was strong enough after the blood transfusion to be operated on at around noontime of the same day. 1 As testified to by the other witness, he was able to talk by mid-morning. Thus, his brother, Jose Zamoras, testified that he was able to talk intelligently some hours before the operation, although in the beginning he could not. He testified on cross examination as follows: Q Up to 9:00 o'clock of the same day, October 8, the same condition could not still talk? A. He could talk already but not yet clear. Q. Do you mean to say he will just murmur? A. Yes, sir. xxx xxx xxx for his wound. Q. At 9:30 o'clock, October 8, 1966, what happened right in the bedroom of the deceased? A. Leonardo Zamoras was still lying in bed but could talk. Q. Do you mean to say he could just talk by himself, nobody asking? A. No, after he was asked. Q. How do you know that at 9:30 o'clock, October 8, 1966, he talked? Q. What was his answer? A. He answered that (it was) the man following him from the municipal building. Q. There was no name mentioned? A. No name mentioned. Q. And that was in a harsh voice? A. In a natural voice.
2

A. Because we asked him some questions. Q. Who asked the deceased some questions? A. My sister, Elma Zamoras. Q. What was the statement (sic) asked? A. My sister inquired as to who was the person responsible

Likewise, the testimony of the widow, Basilia Luna Vda. de Zamoras to the effect that her husband did not talk to her on October 8, 1966, does not necessarily preclude the possibility that at some other time that day the deceased was able to reveal to the police investigators the Identity of his assailant. In fact, this witness stated on cross examination that on October 8, 1966, her husband could talk to other persons. 3 In addition, it will be recalled that when the ante mortem statement was taken by Cpl. Salaveria, there were several persons present, including relatives of the victim, as well as the Acting Chief of Police who brought appellant from the jail to the bedside of the victim. These police officers positively declared chat they were present when the victim pointed to appellant as his assailant. No possible motive has been advanced why these witnesses should falsely incriminate the appellant. The next question that arises centers on the admissibility of the ante mortem statement as a dying declaration so as to constitute an exception to the hearsay rule. An ante mortem statement is a declaration made by a victim of a homicide while about to die, and without any hope of recovery, concerning the facts and circumstances under which the fatal injury was inflicted and offered in evidence at the trial of the person charged with having caused the death of the declarant. 4 In order that a dying declaration may be admissible in evidence, four (4) requisites must concur, to wit: (1) it must concern the crime and the surrounding circumstances of the declarant's death; (2) at the time it was made, the declarant was under a consciousness of an impending death; (3) the declarant was competent as a witness at the time the same was executed; and (4) the declaration is offered in a criminal case for homicide, murder or parricide in which the declarant was the victim. 5 It is imperative, for a dying declaration to be admissible, that the same had been made under a consciousness of impending death. 6 This is so because dying declarations, made when the declarant had no more hope of recovery, are admissible by reason of necessity and trustworthiness. Necessity because the declarant's death renders impossible his taking the witness stand, and it often happens that there is no other satisfactory evidence as to the cause of his death; and trustworthiness because the declaration is made in extremity and every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. "A situation so solemn and so awful as to be considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." 7 The fact that death of the declarant did indeed occur shortly after the declaration was made is not sufficient to render the declaration admissible, absent the requisite proof that the victim was under the consciousness of impending death at the time the declaration was made, and he had no more hope of recovery. A belief in the mind of the declaration, at the time the declarations are made, that death is near is indispensable to the admission of such statements as dying declarations. Where the text of the declaration shows that the deceased himself was in doubt as to whether he would die or not, the dying declaration is not admissible. 8 In the instant case, the victim, when asked whether he believed he was going to die as a result of his injuries, replied: "It all depends." Also, it appears from the records that his condition had progressively improved from the time he was admitted to the time the statement was taken by the police so much so that a short time thereafter he was considered strong enough to undergo an operation. Under these circumstances, it can be concluded that the deceased was, himself, hesitant to accept the fact of his impending death and entertained hopes of recovery, obviously depending on the result of the scheduled operation and further medical treatment. Notwithstanding the fact, however, that the victim's statement may not be admitted as a dying declaration, it is nevertheless admissible as part of the res gestae against herein appellant. In People v. Tumalip, 9 this Court held that the positive Identification of the accused by the victim, made a few hours after he had been shot and while suffering from the agonies of his injuries, although not an ante mortem declaration, may, however, be considered as part of the res gestae, for it was made almost immediately after the startling occurrence.

It is well-settled that as an exception to the hearsay rule, such evidence must comply with these requisites, an occurrence both startling and unusual in character and an utterance made before the declarant could have any opportunity for falsification or distortion, one moreover limited to such event as the immediate attending circumstances. 10 Briefly stated, the spontaneous declaration must have been made while the nervous excitement caused by the startling occurrence was still working on the declarant's mind. This may be a short time after the incident or some hours later, as long as the influence of the startling occurrence still persists. What is important is that the declarant must have had no opportunity to devise or contrive anything contrary to the real facts that occurred. What the law distrusts is not after speech but after thought. 11 There are no limits of time within which the res gestae can be arbitrarily confined. These limits vary in fact with each particular case. The acts or declarations are not required to be contemporaneous with the primary fact, but they must be so connected with it as to make the act or declaration and the main fact practically inseparable, or be generated by an excited feeling which extends, without break or let down, from the moment of the event they illustrate. In other words, if the acts or declarations sprang out of the principal transaction, tend to explain it, were voluntary and spontaneous, and were made at a time so near it as to preclude the Idea of deliberate design, they may be regarded as contemporaneous in point of time, and are admissible. 12 The element of time is, therefore, not controlling, but merely of importance, on the question of spontancity. 13 The general rule is that where declarations are unconsciously associated with and related to the homicidal deed even though separated from it by a short time, they are evidence of the character of the deed and a part of theres gestae. No inflexible rule as to the length of the interval between the act of killing and the act of declaration of the person killed can be formulated; in such matter, the facts of each case stand alone and must speak for themselves. 14 From the circumstances of the case, the victim could not have had time to concoct or devise a story different from what actually transpired, and his narration, at the first opportunity, of the incident and his Identification of his assailant must be considered as part of the starling occurrence, the influence of which was still working on his mind. Moreover, it is significant that the victim did not name a specific person, as his assailant was a person not familiar to him, but merely described him as the one who followed him from the municipal building after an altercation which arose when he (victim) accidentally stepped on appellant's wife while she lay on the floor of the municipal building. Appellant has failed to advance any reason or motive why the victim, who did not know him prior to the incident, would Identify him as the perpetrator of the offense if this were not true. It must be recalled that there were many persons sleeping in the municipal building and yet he was singled out by the police, as a consequence of the series of events that transpired, starting from the commotion that ensued when the victim accidentally stepped on appellant's wife and appellant's suspicious actuations after he returned to the municipal building. It was shortly after appellant's return that the police received information of the stabbing of the victim. The lower court found that the crime was committed with the qualifying circumstance of treachery and the aggravating circumstance of evident premeditation, offset by the mitigating circumstance of passion and obfuscation, hence it imposed upon the herein appellant the penalty of reclusion perpetua, among others. We find no proof that evident premeditation and treachery accompanied the commission of the crime. Evident premeditation could not have existed because immediately after the commotion caused by the accidental stepping on his wife, the appellant followed the victim and stabbed him. As the trial court observed, the Shell gasoline station where the victim was stabbed was "not far from the municipal building", 15 and, in the few minutes it took to follow and overtake the victim, the appellant could not have had sufficient opportunity to meditate upon and determine the killing. lt is settled that where a previous incident preceded the assault, evident premeditation is not present. 16 and that in the absence of reflection and persistence of criminal intent, said circumstance cannot be appreciated. 17

Similarly, treachery cannot be appreciated against the herein accused because there is no showing whatsoever that the mode of attack employed by him was calculated to insure the commission of the crime without risk to himself, arising from any defense that the victim may put up. As a matter of fact, the mode of attack is not known at all, there being no eyewitness to the stabbing incident. 18 Treachery must be shown by convincing evidence, 19and the same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting its attendance, whether as a qualifying or an aggravating circumstance, in a criminal case. 20Moreover, consistent with the finding that the killing was not premeditated, there can be no treachery in the instant case because the decision to attack was arrived at on the spur of the moment. 21 In addition, the factual circumstances obtaining in the case indicate that the victim knew that he was being followed from the municipal building. Thus, he was able to state in the ante mortem statement that the person who stabbed him was the one who had followed him from the municipal building. This being the case, and considering that he was well aware of the previous altercation between them, the victim must have been on his guard and aware that the appellant meant him harm. Considering the foregoing, We hold that due to the absence of any qualifying circumstance, the crime committed is not murder but homicide, defined and penalized under Article 249 of the Revised Penal Code, unattended by any aggravating or litigating circumstance. We are not convinced that passion and obfuscation Should be appreciated in favor of herein appellant so as to mitigate his criminal liability. The accidental stepping by the victim on appellant's wife was insufficient cause for passion or obfuscation to so affect appellant's reason that he commits a vicious crime as a result thereof. In order for such mitigating circumstance to be appreciated, it is necessary to establish the existence of an act both unlawful and sufficient to produce such a condition of mind that the culprit is precluded from a sober realization of the wrongfullness of the course of action about to be taken. 22 WHEREFORE, the decision appealed from is modified; appellant Teodoro Lanza is hereby found guilty of the crime of Homicide and sentenced to an indeterminate penalty ranging from EIGHT (8) YEARS and ONE (1) DAY ofprision mayor, as minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal as maximum, with the accessory penalties provided by law. The awards of P2,000.00 as civil indemnity, without subsidiary imprisonment, P2,000.00 as moral damages and P500.00 as hospital and burial expenses are hereby affirmed. SO ORDERED. Barredo, Aquino, Concepcion, Jr., Santos and Abad Santos, JJ., concur.

G.R. No. L-24546

February 22, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISAIAS MACALISANG, accused-appellant. SANCHEZ, J.: The charge is murder. The judgment below sentenced appellant to life imprisonment, to indemnify the heirs of the deceased in the sum of P6,000.00, and to pay the costs. Following are the facts: In the morning of November 14, 1949, two bloody incidents occurred in the town of Sinacaban, Misamis Occidental. About 9:00 o'clock in the morning of that day, Victoriano Simbajon, defeated candidate for Mayor of Sinacaban, approached incumbent Mayor Sofronio Avancea, his opponent and the victor, near the municipal building. Victoriano Simbajon who was then accompanied by his son, Panfilo, and his son-inlaw, Arturo Yap while still at a distance, raised his hands apparently to signify that he accepted defeat, invited the Mayor to ride with him in his jeep in going to a wedding party to which both were invited. Mayor Avancea politely declined. Simbajon and his party left, went down the slope leading to the national highway. Sometime later, Avancea followed by the Chief of Police, herein appellant Isaias Macalisang, and Patrolman Liborio Dominguez left on foot, followed the same route. As they approached the highway, Simbajon then standing near the house of one Isabelo Plaza again offered his jeep to Avancea. The latter again declined, stated that he would take the jeep of the municipal health officer. Immediately thereafter, there was a burst of gunfire in rapid succession. Mayor Avancea was mortally wounded; his two companions critically wounded. Parenthetically, for these crimes, Victoriano Simbajon, Feliciano Simbajon, Panfilo Simbajon and Bonifacio Simbajon, in separate cases jointly tried, were prosecuted for (1) the murder of Mayor Avancea, (2) the frustrated murder of herein appellant Isaias Macalisang, and (3) the frustrated murder of Patrolman Liborio Dominguez. They were all convicted below. For the crime of murder, they were all sentenced to reclusion perpetua, and for the two other crimes, they were separately given prison terms by the trial court. Bonifacio Simbajon did not appeal. The judgment as to the rest was affirmed by this Court on September 30, 1965 (G.R. No. L-18073-75), with a slight modification as to the penalty for the frustrated murders. Minutes after the incident heretofore described, Fr. William Bourke, the town parish priest, who heard the shots, came upon the scene of the crime together with his houseboy, Benjamin Lopez, in the former's jeep. He administered the last sacraments. Appellant Isaias Macalisang was lifted by Benjamin Lopez and placed in the front seat of the jeep between him and Fr. Bourke, who was at the wheel. They proceeded to Ozamis City. While the jeep was negotiating a curve in Barrio Casoy of Sinacaban, appellant Macalisang pointed his gun at Francisco Dano, who was at the curb of the road by the mountainside, and fired. Francisco Dano was hit. The bullet entered his back at the right of the mid-spinal line; it came out thru the right chest. He shouted to his wife: "Help help, Day, I am hit by the gun. Help, I will die." Francisco Dano's wife, Perfecta, rushed to his side and found that he was bleeding in front and in the back of his body. She asked Dano who shot him. Dano's reply: "Chief Isaias Macalisang." Brought to Ozamis City, Dano expired on the same day. Came the present prosecution for murder with the result noted at the start of this opinion. 1. That it was appellant Macalisang who fired the shot which killed Dano, we do not doubt. Upon hearing the shot, Fr. Bourke saw the gun held by appellant still pointed at the side of the road. Benjamin Lopez testified that he first noticed the deceased Dano some forty meters away; that as they were getting closer to Dano, appellant took his gun from his lap, pointed it the former, fired once; that he grabbed the gun from Macalisang; that thereafter, they proceeded to Ozamis City; and that there, Fr. Bourke took the gun from him and surrendered it to the Philippine Constabulary. And then, there is the testimony of Perfecta vda. de Dano that when she approached her husband, the latter told her that it was Chief Macalisang who shot him. This is in the nature of a dying declaration. At that time, Dano felt that he was at the point of death. Indeed, he was in a very serious condition. In fact, he died on the same day. 1 2. But appellant pleads that he was unconscious or under shock at the time the act was committed. The factual support for this is that in the earlier incident, he received gunshot wounds "from the point of my penis hitting my . . . (gonads) to my lap"; that his left leg was broken; that he fell into the canal. He further relates that from then on, he lost consciousness until he was already treated at the Medina Hospital in Ozamis City. As prop for his testimony, he presented Dr. Rico Medina, his attending physician.

The doctor's version is that appellant was in a very serious condition when brought to the hospital because of the bullet wound he suffered at the tip of the penis that pierced the right lateral portion of the scrotum, the bullet wound on the lower, right extremity, and loss of blood. According to the doctor, these injuries would cause momentary unconsciousness for a length of time depending upon the resistance of the patient. Appellant is robust. In this case, the doctor opines that "there is very big probability" that Macalisang "during the time of the accident was unconscious." He stressed, however, that it was possible that Macalisang could "recover consciousness after 10 minutes," could have recognized persons, and could have been in full control of the upper extremities which were not affected at all by the wounds. Appellant's testimony falls far short of convincing us, as it did not convince the lower court, that he did not deliberately fire at Dano. He was, indeed, conscious at that time. When placed on the jeep, he took the precaution of placing his service revolver on his lap. Lopez saw him take that gun and fire at Dano. The priest, upon hearing the shot, saw appellant with the gun still pointed at the side of the road. The version of Captain Benjamin Rafols, who interviewed appellant in the hospital furnishes the clincher. Appellant admitted to the captain, "I was the one who shot Mr. Dano." This statement is definite, although the captain stated that Macalisang was confused as to the shooting incident that occurred earlier in the morning. And then, the doctor affirmed that it was possible that appellant could have regained consciousness after 10 minutes. Between the time appellant was hit by gunfire to the time the priest in his jeep came by, the evidence is that about 10 to 15 minutes transpired. A criminal act is presumed to be voluntary. We cannot seize upon speculation or guesswork to overturn this presumption. At any rate, between the self-serving version of appellant and the indecisive testimony of his doctor, on the one hand, and the positive assertion of Fr. Bourke, witness Lopez and Capt. Rafols, on the other, the choice is clear. Fact prevails over assumption. Absent an aboveboard explanation, the shooting must be declared voluntary and punishable.1wph1.t 3. Treachery, according to the decision below, qualifies the crime as murder. Appellant's assertion to the contrary is not to be slightly taken. It deserves serious consideration. Jurisprudence has it that the mere location of the bullet wound at the back as is the case here by itself, does not prove treachery. 2 Neither will suddenness of the attack alone. 3 Even if the purpose was to kill, so long as the decision was sudden and the victim's position accidental, no treachery attaches to the killing. 4 The question of treachery perhaps may not be thoroughly understood except in the peculiar setting of this case. Appellant knew that Dano was the chief adviser of the defeated candidate for Mayor, Victoriano Simbajon. Dano delivered speeches against Mayor Sofronio Avancea and wrote leaflets attacking the latter. Chief of Police Macalisang, in turn, was a supporter of the deceased Mayor Avancea. After Macalisang was wounded, he did not go in search of Dano. It just so happened that on his way to Ozamis City, he saw Dano on the road. Appellant was in a running jeep; the victim standing at the side of the road. It was an impulse of the moment that led to the attack which caused death. The resulting crime is not murder qualified by treachery. Because, it does not appear that "the method of assault adopted by the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed may make." 5 With treachery eliminated, the crime thus committed is homicide. The amended information charged that appellant is a recidivist. He was really convicted of serious physical injuries and less serious physical injuries on September 4, 1941. 6 Therefore, the homicide herein committed is attended by one aggravating circumstance, with none in mitigation. The penalty should be reclusion temporal in the maximum period. We, accordingly, modify the judgment appealed from, 7 and sentence defendant for the crime of homicide to suffer imprisonment for an indeterminate period ranging from eight (8) 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, to indemnify the heirs of the deceased Francisco Dano in the sum of P6,000.00, without subsidiary imprisonment in case of insolvency, but with the accessories of the law, and to pay the costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro, Angeles and Fernando, JJ., concur.1wph1.t

G.R. No. L-31961 January 9, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs.FLORENCIO ODENCIO and GUIAMELON MAMA, accused-appellants. Florencio Odencio and Guiamelon Mama appealed from the decision of the Court of First Instance of North Cotabato, finding them guilty of two separate crimes of murder, sentencing each of them to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of Prowa Talib and P12,000 to the heirs of Kadir Oranen (Criminal Case No. 5276). According to the prosecution, at about seven o'clock in the evening of June 29, 1968, while Prowa Talib (Palua Talib), a forty-year old farmer, was in the yard of his house located at Barrio Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao, who was near the stairs, he was felled down by a volley of shots. Setie rushed to the aid of her husband. When she looked in the direction where the gunshots emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas away. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun near another coconut tree around ten meters away in the yard of the house of her neighbor, Daongan Karaing. She noticed that Kadir Oranen, who was nearby, had fallen to the ground around three arms' length from Daongan's house. Kadir died instantly. Setie had known for a long time Florencio and Guiamelon who were friends and neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent farmlands. While Setie was comforting her husband, he allegedly told her that he was going to die. He directed her to remember what had happened to him and that they had seen Guiamelon Mama and Poren armed with guns. Prior to that shooting incident, Prowa Talib had reported to the barrio captain that Florencio Odencio had stolen his lumber. The two assailants fled westward. At the time the incident occurred, Japal Rongot was on his way to Talib's house. He encountered Guiamelon and Joseph Odencio with both of whom he was well acquainted. He asked Guiamelon why there were gunshots but the latter did not make any reply. Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap. Setie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which was about two arms' length from Talib. Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie heard, the gunshots on the occasion in question. He hastened to Talib's house. Setie told him that Guiamelon Mama had shot Talib. She advised her uncle not to use his flashlight because Guiamelon was still in the vicinity. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in order to get assistance from his fatherin-law. While crossing the trail his flashlight focussed on Florencio Odencio with two companions leaving the scene of the crime. Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder. They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Saada Talib told Saada that his assailants were Guiamelon, Florencio Odencio and Florencio's father, Joseph Odencio. Due to the critical condition of Talib(nagaagonto), he was not able to sign his dying declaration (Exh. B) as taken down by Patrolman Saada Talib was brought to the hospital. He died on the following day. In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of Damiog, the father-in-law of Guiamelon. It was stated further in the same dying declaration that Talib had told Patrolman Saada that he wanted to sign it but that he could not do so because of the wound in his arm. Talib also articulated his belief that he was going to die because he could hardly breathe and his wound was painful. On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem statement, Saada executed an affidavit reciting the circumstances surrounding the taking thereof. Saada testified in court on Talib's dying declaration. The autopsy disclosed that Talib sustained eight gunshot wounds in the back or posterior chest wall. No autopsy was performed on the body of Oranen who, as noted above, died at the scene of the crime. On July 1, 1968, a complaint for double murder was filed in the municipal court against Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law. They waived the second stage of the preliminary investigation. On September 19, 1968, an information was filed in the Court of First Instance against Guiamelon Florencio Odencio and Joseph Odencio, The trial court acquitted Joseph and convicted only Florencio and Guiamelon.

In his defense, Florencio, a thirty-two year-old farmer, denied that he shot Talib and that he had a misunderstanding with Oranen and Talib with both of whom he was acquainted. Florencio testified that he was in his house when the shooting occurred. He was arrested on the following day, June 30, 1968. He surmised that he was implicated in the case because he did not support Mayor Doruelo, the incumbent mayor, and, instead, he voted for Estaol, the candidate of the Liberal Party. Florencio's alibi was corroborated by his wife and his brother-in-law, Antonio Cesar. The other accused, Guiamelon Mama, a thirty-year-old farmer, adopted the same line of defense. He declared that he was also in his house when Talib was shot; that he had no misunderstanding with Talib, who is his father's brother-in-law, being the brother of his stepmother, his father's second wife; that he was arrested while he was attending Talib's funeral, and that he came to know his co-accused Florencio Odencio only in jail. The accused presented Samuel Jubilan, a Constabularly Sergeant, who testified that he was present when Patrolman Saada interrogated Talib and that the latter declared that he was not able to recognize his assailant because it was dark. Saada said he did not know of that interrogation made by Jubilan. In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused were indubitably Identified as the assailants in Talib's dying declarations to his wife and Patrolman Saada. Setie Mamalintao in her statement to the police declared that she was able to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and Karaing's house (No. 19, Exh. 1, p. 11, Record). The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib because he was preparing" supper when he was shot and that Setie was able to recognize the accused because she had been acquainted with them for a long time. As stated above, two witnesses saw the accused in the vicinity of Talib's house shortly after the shooting. Therefore, the contention of appellants' counsel de oficio that they had not been sufficiently Identified as the killers cannot be sustained. Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence. Guiamelon and Odencio were seen pacing back and forth near Talib's house on the day of the incident (No. 27, Exh. 1). They shot the two victims in the same place and almost simultaneously, thus showing a coordination of efforts and community of design. On leaving the scene of the crime, they proceeded in the same direction (westward). They were animated by the same motive, which was to liquidate the victims because the latter allegedly stole the carabaos of the relatives of the accused. The record does not disclose any reason why Setie Mamalintao and Patrolman Saada would frame up the appellants. The manner in which they shot the victims shows treachery. The shooting was not the product of momentary impulse. There was alevosia because the two malefactors, taking advantage of the cover of night, stationed themselves in a place where they could shoot the victims with impunity without any risk to themselves or without exposing themselves to any retaliation since the victims did not expect to be assaulted at that time and place. Appellants' counsel further contends that they were convicted on the basis of the wife's uncorroborated testimony "which is open to suspicion due to inherent improbabilities'' and "motives to falsify the truth". That contention is not correct. Talib's antemortem statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other witnesses saw the appellants leaving the scene of the crime. Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration may be oral or written If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315-316.) We are satisfied that the guilt of the appellants was proven beyond reasonable doubt. As they were coconspirators, they are each liable for the two murders. There being no modifying circumstances concomitant with the commission of the two assassinations, the trial court properly penalized each murder with reclusion perpetua(Arts. 64[1] and 248, Revised Penal Code). The trial court's judgment is affirmed with the sole modification that the two appellants should be held solidarityliable for the two indemnities of P12,000 each. In the service of the two reclusion perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed. Costs against the appellants. SO ORDERED.

G.R. No. 110129 August 12, 1997 PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. EDELCIANO AMACA @ "EDDIE" and "JOHN DOE" @ "OGANG," accused, EDELCIANO AMACA @ "EDDIE," accused-appellant. PANGANIBAN, J.: The ante mortem statement of the victim is sufficient to identify the assailant in the case at hand. However, the accused cannot be convicted of murder attended by treachery, because the Information charged him with murder qualified only by evident premeditation. This legal lapse of the prosecution for that matter, any prosecution lapse should benefit the appellant, because in a criminal case, the accused may be held accountable only for the crime charged (or for the crime necessarily included therein), and every doubt must be resolved in his favor. Thus, we hold him guilty only of homicide. Furthermore, since the heirs of the victim waived their claim through an affidavit of desistance, no award for civil indemnity should be included in this Decision finding the accused guilty of the homicide. Statement of the Case These postulate are explained in the Court's adjudication of this appeal from the Decision 1 dated November 19, 1992 of the Regional Trial Court of Bais City, Branch 45, 2 in Criminal Case No. 550-C convicting Accused Edelciano Amaca of murder and sentencing him to reclusion perpetua. On December 17, 1990, an Information 3 was filed by Bais City Prosecutor Epifanio E. Liberal, Jr. against Appellant Amaca and one known only by his alias "Ogang," charging them as follows: That on October 1, 1990 at around 7:00 o'clock in the evening, more or less, in Purok Liberty Hills, Barangay Mabigo, Canlaon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused mutually helping one another and with evident premeditation and at nighttime did then and there wilfully, unlawfully and feloniously attack, assault and shot with the use of a firearm one Wilson Vergara who, as a result thereof, suffered fatal gunshot wound as reflected in the medical certificate issued on October 2, 1990 by the Guihulngan District Hospital which was the immediate cause of his immediate death. Contrary to Art. 248 of the Revised Penal Code. A warrant for the arrest of accused-appellant was issued on January 16, 1991. 4 However, this was returned unserved on two different occasions for the reason that the subject had already changed address and "his whereabouts [were] unknown." 5 A motion for reinvestigation filed by appellant's Counsel de Oficio Marcelo Ondoy was denied in an Order dated April 15, 1991 on the ground that the trial court had not yet acquired jurisdiction over the accused who was then still at large. 6 Jurisdiction over the person of appellant was acquired by the said court only on July 1, 1991 when he was arrested by police authorities. 7 Thereafter, reinvestigation was conducted but the prosecutor, reiterating his prima facie findings, resolved to continue the prosecution of the accused. Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy, pleaded not guilty to the charge. 8 Trial ensued in due course. Thereafter, the trial court rendered its Decision, the decretal portion of which reads: WHEREFORE, premises considered, this Court finds accused EDELCIANO AMACA alias "EDDIE" guilty beyond reasonable doubt of the crime of murder as penalized under Article 248 of the Revised Penal Code, and hereby sentences the said accused to a penalty of RECLUSION PERPETUA, without pronouncement as to civil liability, and damages, and to pay costs. SO ORDERED. The Facts
9

The trial court synthesized the facts based on the testimonies of witnesses for the prosecution and the defense, as follows: To prove the injuries sustained by the victim, Wilson Vergara, and his cause of death, the prosecution presented Dr. Edgar P. Pialago, a resident physician of the Guihulngan District Hospital, Guihulngan, Negros Oriental, who testified that on October 2, 1990, he was on duty at the aforesaid hospital, and was able to attend to victim Wilson Vergara who had just undergone a surgical operation conducted by another doctor, Dr. Gonzaga. The major organs of the victim, namely, the heart, lungs and kidney, were no longer functioning normally, and thus, he was suffering from multiple organ system failure. Furthermore, there was injury in the pancreas, causing a leak of the pancreatic juice. Victim suffered two gunshot wounds at the back, and x-ray revealed two (2) bullets inside the body, and there was no exit wound. The patient was admitted at 10:45 in the evening of October 1, 1990, and died at 7:00 in the evening of the following day. He identified the death certificate (Exh. "A"), and the data sheet of the victim and the final diagnosis. (Exh. "B") Even with immediate medical attention, the victim could not have survived with the wounds he sustained. Bernardo Mangubat, member of the Philippine National Police of Canlaon City, testified that as a police investigator one of his companions in the force fetched him from his residence at about 7:00 in the evening of October 1, 1990, and informed him of a shooting incident, where the victim was at the clinic of Dr. Cardenas, which was near his residence. Upon reaching the clinic of Dr. Cardenas, he saw the victim already on board a Ford Fiera pick up ready for transport to the hospital. He inquired from the victim about the incident, and the former answered he was shot by CVO Amaca and Ogang. Upon query why he was shot, the victim said he did not know the reason why he was shot. Upon being asked as to his condition, the victim said that he was about to die. (TSN, p. 22, March 4, 1992) Upon being asked, the victim identified himself as Nelson (sic) Vergara. He was able to reduce into writing the declaration of victim Vergara, and have the latter affixed (sic) his thumbmark with the use of his own blood in the presence of Wagner Cardenas, the brother of the City Mayor. (Exh. "C") Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely, Felix Ponting, and Alfredo Gabucero, portrayed the following scenario: Felix Ponting and Alfredo Gabucero were members of the CAFGU (Civilian Armed Forces Geographical Unit) and accused as member of the Civilian Volunteer Organization (CVO) with station at Barangay Lumapao, Canlaon City. On October 1, 1990, the accused together with his companion Felix Ponting were on duty at the said station from 6:00 o'clock in the evening to 8:00 o'clock that same evening. After their duty at 8:00 o'clock, they went to sleep at the detachment, and were relieved by Alfredo Gabutero, whose duty covered from 8:00 to 9:00 that same evening. 10 Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law Jose Lapera both desisted from further prosecution of the case; the former because of the "financial help" extended by the accused to her family, and the latter because Segundina had already "consented to the amicable settlement of the case." This notwithstanding, the Department of Justice found the existence of a prima facie case based on the victim's ante mortem statement. 11 The Trial Court's Ruling The trial court deemed the victim's statement to Police Officer Mangubat, positively identifying Appellant Amaca, a dying declaration sufficient to overcome the latter's defense of alibi. However, due to the voluntary desistance of the victim's mother from further prosecuting the case, the court a quo declined to make a finding on the civil liability of the appellant. The Issue In his brief, the appellant filed a lone assignment of error, to wit: The trial court erred in finding accused Edelciano Amaca guilty beyond reasonable doubt of the crime of murder on the sole basis of the alleged dying declaration of the victim to Police Officer Bernardo Mangubat. 12

The Court's Ruling The appeal is partially granted. The appellant is guilty only of homicide, not murder, and civil indemnity shall not be awarded to the heirs of the deceased. Dying Declaration Sufficient to Identify Assailant A dying declaration is worthy of belief because it is highly unthinkable for one who is aware of his impending death to accuse, falsely or even carelessly, anyone of being responsible for his foreseeable demise. Indeed, "when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth." 13 This is the rationale for this exception to the hearsay rule under Section 37, Rule 130 of the Rules of Court. The elements of such exception are: (1) the deceased made the declaration conscious of his impending death; (2) the declarant would have been a competent witness had he survived; (3) the declaration concerns the cause and surrounding circumstances of the declarant's death; (4) the declaration is offered in a criminal case where the declarant's death is the subject of inquiry; and (5) the declaration is complete in itself. 14 All these concur in the present case. Declarant a Competent Witness The appellant contends that had he survived, the declarant would not have been a competent witness to identify his assailant. He emphasizes that the victim was shot twice at the back at nighttime and that ". . . the witness/victim based on the foregoing circumstance was not able to see the alleged assailants . . . 15 We are not persuaded. True, the victim, Wilson Vergara, was hit at the back by two bullets. But as the prosecution clearly showed by other evidence, Wilson did not lose consciousness upon being shot. In fact, his ante mortem statement clearly indicates that he was able to see and recognize who shot him. In this light, appellant is assailing the credibility, not the competency, of the victim. Competency of a witness to testify requires a minimum ability to observe, record, recollect and recount as well as an understanding of the duty to tell the truth. 16 Appellant does not dispute that the victim was capable of observing and recounting the occurrences around him; appellant merely questions whether the victim, under the circumstances of this case, could have seen his assailant. In effect, appellant challenges merely the credibility of the victim's ante mortem statement. We hold that the serious nature of the victim's injuries did not affect his credibility as a witness since said injuries, as previously mentioned, did not cause the immediate loss of his ability to perceive and to identify his shooter. The Court had occasion in the past to rule on a similar issue as follows: . . . (') The question as to whether a certain act could have been done after receiving a given wound,(') according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), "is always one that must be decided upon the merits of a particular case." They cited a case from Vibert's Precis de Med. Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary. The lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the courtyard. When the fire was extinguished, the man lay down in bed and died. Vibert performed the autopsy, and found that the left ventricle of the heart had been perforated by the revolver's bullet. It is evident from the foregoing that Dr. Acosta's assertion that the victim of a gunshot wound would immediately lose consciousness, after infliction of the wound, may not be true in all cases. . . . 17 Appellant also argues that the declarant could not have seen who shot him because "the actual shooting occurred at 7:00 o'clock in the evening." 18 This statement is bereft of factual basis. The record shows that Police Officer Mangubat was fetched from his house at 7:00 p.m. to investigate the shooting. He was informed that the victim had already been brought to the clinic of Dr. Cardenas. 19 It may thus be inferred that the shooting occurred sometime before the victim was found, brought to the clinic, and before Mangubat was fetched from his house. Thus, a considerable period of time must have elapsed from the time of the actual shooting until the policeman was fetched from his house around 7:00 p.m. That he was shot way before 7:00 p.m. does not lead to the inference that it was pitch-black at the time of the shooting. Indeed, from the foregoing, it is reasonable to assume that the crime was committed before nightfall and that there was sufficient daylight to enable the victim to identify his assailant.

At any rate, there are no indicia in the record that lighting conditions made it impossible for declarant to identify his assailant. Ineluctably, the positive assertion of the declarant that he did recognize his shooter has greater persuasive value than the baseless negative speculation of the defense that he did not. Genuineness of the Dying Declaration The defense attempts to cast doubt on the genuineness of the dying declaration by suggesting that since "the relationship between CAFGU and the PNP is marred by jealousy, suspicion and general dislike for one another,"20 Police Officer Mangubat had enough motive to falsely implicate appellant who was a CAFGU member. The defense also asks: "Why was the alleged dying declaration of the victim merely thumbmark (sic) when in fact he was still coherent, conscious and very capable of writing his name at that time?" 21 Additionally, the defense questions why Wagner Cardenas who signed the ante mortem statement as witness was not presented as such by the prosecution. 22 The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not destroy the genuineness of the ante mortem statement. Police Officer Mangubat is presumed under the law to have regularly performed his duty. There is nothing in the circumstances surrounding his investigation of the crime which shows any semblance of irregularity or bias, much less an attempt to frame Appellant Amaca. As aptly noted by the trial court, even appellant testified that he had no previous misunderstanding with Police Officer Mangubat and knew no reason why the latter would falsely testify against him. 23 This dismal failure of the defense to show any ill motive on the part of said police officer adds credence to Mangubat's testimony. 24 Moreover, that the declarant attested to his ante mortem statement through his thumbmark in his own blood is sufficient to sustain the genuineness and veracity thereof. This manner of authentication is understandable in view of the necessity and urgency required by the attendant extreme circumstances. It cannot be indicative of any ulterior motive on the part of Police Officer Mangubat. We have clearly ruled that an ante mortem statement may be authenticated through the declarant's thumbmark imprinted which his own blood, and serve as evidence in the form of a dying declaration in a criminal case involving his death. 25 Verily, such declaration need not even be in writing and may be proven by testimony of witnesses who heard it. Finally, the non-presentation of Wagner Cardenas as witness during the trial is not fatal, as his testimony would have been merely corroborative of Mangubat's. In addition, the presumption that evidence omitted by a party would be adverse if presented does not obtain in this case, since Wagner Cardenas is also available and could have been called to the witness stand by accused-appellant. Besides, it is the prosecutor's prerogative to choose his own witnesses to prove the People's cause. 26 Ante Mortem Statement as Res Gestae The ante mortem statement may also be admitted in evidence when considered as part of the res gestae, another recognized exception to the hearsay rule provided specifically under Rule 130, Section 36 of the Rules of Court. The requisites for the admissibility of statements as part of the res gestae are: (a) the statement is spontaneous; (b) it is made immediately before, during or after a startling occurrence; and (c) it relates to the circumstances of such occurrence. 27 These requirements are obviously fulfilled in the present case where the statement, subject of this discussion, was made immediately after the shooting incident and, more important, the victim had no time to fabricate. An ante mortem statement may be admitted in evidence as a dying declaration and as part of the res gestae. This dual admissibility is not redundant and has the advantage of ensuring the statement's appreciation by courts, particularly where the absence of one or more elements in one of the said exceptions may be raised in issue. In this manner, the identification of the culprit is assured. 28

Alibi Debunked The defense also contests the trial court's finding that the "alibi interposed by the accused miserably fall short of exculpation. (Decision, p. 7)" 29 Appellant insists that, since the dying declaration was unreliable and since there was no positive identification aside from this declaration, the defense of alibi gained strength. 30 There is no basis for this contention for, as previously discussed, the ante mortem statement met all requirements for its admissibility either as a dying declaration or as part of the res gestae or both. 31 It must be remembered that alibi is inherently weak and the facts in the case at hand show that it was not at all impossible, considering the circumstances of time and place, for the accused-appellant to have been present at the crime scene at the time of its commission. 32 The military detachment at Barangay Lumapao, where appellant allegedly slept, is a mere seven kilometers away from Barangay Mabigo, Purok Liberty Hills where the crime was committed. In other words, the able-bodied appellant was only an hour's walk and a short fifteen-minute tricycle ride from the locus criminis. 33 As correctly argued by the trial court, "(i)t would not have been impossible for the accused to be at Purok Liberty Hills, and shoot the victim, and come back to his detachment in a matter of thirty (30) minutes, the time testified by the defense witness Gabutero as to going to and coming back from these two places. (TSN, p. 17, July 15, 1992)" 34 The alibi of appellant cannot overcome, therefore, the very persuasive declaration of the victim. 35 Based on the foregoing discussion, the Court's conscience rests easy with the moral certainty that indeed accused-appellant committed the crime charged. His pretense at innocence is futile in view of the overwhelming evidence presented against him. Even his flight eluding the police for almost six months after the issue of the warrant for his arrest clearly bespeaks his guilt. 36 Murder or Homicide? Finally, the defense posits that the appellant may be held liable only for homicide since treachery was not alleged in the Information, while evident premeditation and nighttime, although duly alleged, were not satisfactorily proven.37 We agree. The Information readily reveals that the killing was qualified only by evident premeditation. The trial court however found that the killing was qualified by treachery. Even assuming that this conclusion is supported by the evidence on record, we cannot appreciate treachery to qualify the crime to murder for the simple reason that this was not alleged in the Information. Treachery is an element of the crime. The Constitution requires that the accused must be informed of the "nature and cause of the accusation against him." 38 Obviously, this failure to allege treachery in the Information is a major lapse of the prosecution. Since every doubt must be resolved in favor of the accused, we cannot convict him of murder through treachery under an Information that charged him with murder qualified by evident premeditation. Moreover, in this case, treachery and nighttime may not be considered even as generic aggravating circumstances, because there is nothing in the testimony of the prosecution witnesses to convincingly show that the accused-appellant consciously and purposely adopted (1) such means of attack to render the victim defenseless and (2) the darkness of night to facilitate the commission of the crime, to prevent its discovery or even evade capture. This conclusion is further bolstered by the simple fact that not one of the prosecution witnesses saw the commencement of the assault or even the actual assault itself. Hence, they are not competent to testify on whether the aggravating circumstances of treachery and nighttime attended the commission thereof. These circumstances cannot be appreciated on the basis of mere presumptions or suppositions; they must be proven as clearly as the crime itself. 39 Appellant may therefore be held liable only for the crime of homicide defined under Article 249 of the Revised Penal Code. Since there are no mitigating or aggravating circumstances, the penalty of reclusion temporalprovided under said article shall be imposed in its medium period . Applying the Indeterminate Sentence Law, appellant should suffer imprisonment of prision mayor in its medium period to reclusion temporal, also in its medium period.

Non-Award of Indemnity The trial court did not make a finding on the civil liability of accused-appellant, reasoning that it was prevented from doing so by the "unwillingness" of the victim's mother, Segundina Vergara, to further prosecute the case against the accused. 40 The trial court cited the resolution of the Department of Justice (DOJ) denying the motion for reinvestigation. The DOJ held that the ante mortem statement of the victim testified to by Pfc. Mangubat accorded prima facie validity to the case against the accused, but it noted and confirmed the desistance of the victim's mother and her son-in-law from further prosecuting the case. The salient portions of Segundina Vergara's affidavit of desistance quoted in said resolution reads: That I am the complainant in a case which I filed in the Office of the City Prosecutor, Canlaon City and docketed as Criminal Case No. 550-C of Regional Trial Court, Bais City for Murder against Eddie Amaca as the alleged accused; That in the evaluation of our case against him, I have found out that the death of my son Wilson Vergara was purely accidental that could be attributed to his fault; That due to my compassion to the poor accused who is a family man, I have decided to drop the case against Eddie Amaca for the reason that his family financially help (sic) us in our family problems due to the death of my late son; That with our desire to have a mutual understanding and goodwill among ourselves, since we are neighbors and our respective families are good friends, I have decided to drop the case against Eddie Amaca; That when the said case was scheduled for hearing, I will not testify anymore as the complaining witness; 41 The Solicitor General finds nothing wrong with the trial court's reasoning and recommends that its decision be affirmed. 42 We agree. The facts of this case show that the victim's mother desisted from prosecuting the case in consideration of the "financial help" extended to her family by the accused-appellant. Such "financial help" when viewed as an offer of compromise may also be deemed as additional proof to demonstrate appellant's criminal liability. 43 Parenthetically, her claim that the cause of her son's death was an accident attributable to the latter, has no basis. It is inconceivable that the victim's two gunshot wounds at the back were self-inflicted. Well-settled it is that the desistance of the victim's complaining mother does not bar the People from prosecuting the criminal action, but it does operate as a waiver of the right to pursue civil indemnity. Hence, in effectively waiving her right to institute an action to enforce the civil liability of accused-appellant, she also waived her right to be awarded any civil indemnity arising from the criminal prosecution. 44 This waiver is bolstered by the fact that neither she nor any private prosecutor in her behalf appealed the trial court's refusal to include a finding of civil liability. 45 The records, however, do not show whether the deceased had other compulsory heirs. Such heirs, if there are any, may file an independent civil action to recover damages for the death of Wilson Vergara. WHEREFORE, premises considered, the questioned Decision is hereby MODIFIED. Accusedappellant Edelciano Amaca is found GUILTY of homicide and SENTENCED to an indeterminate penalty of ten years of prision mayor,as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. No civil indemnity is awarded. No costs. SO ORDERED.

G.R. No. 94545 April 4, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SANTOS y BAINGAN @ PRAN and VILLAMOR ASUNCION, accused, PANGANIBAN, J.: The threshold issue here is whether the antemortem statement of the deceased identifying the accused constitutes a dying declaration sufficient to sustain the conviction of appellant. This is an appeal from the Decision 1 of the Regional Trial Court of Cabarroguis, Quirino, Branch 31, promulgated on June 28, 1990, in Criminal Case No. 615, finding Appellant Francisco Santos y Baingan guilty beyond reasonable doubt of murder. The dispositive portion 2 thereof reads: IN VIEW OF ALL THE FOREGOING, the guilt of the accused having been proven beyond reasonable doubt, the accused is hereby sentenced to reclusion perpetua and to indemnify the heirs of the victim in the amount of Thirty Thousand (P30,000.00) Pesos plus all the accessory penalties provided for by law. The detention of the accused shall be fully credited in his favor. Cost against the accused. SO ORDERED. Appellant was charged with murder by Provincial Fiscal Anthony A. Foz in an Information 3 dated November 18, 1987 which reads: That on or about 7:30 o'clock in the evening of September 18, 1987 in Barangay Ponggo, Municipality of Nagtipunana, Province of Quirino, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another and armed with a long firearm of undetermined caliber, did then and there, with intent to kill and with evident premeditation and treachery, shot one David Ambre which caused his instant death. That the following aggravating circumstances attended the commission of the crime: 1. That the crime was committed during nighttime to insure impunity of the accused; 2. That the accused used unlicensed firearms in the commission of the crime. CONTRARY TO LAW. Upon arraignment, appellant, assisted by his counsel de parte, Atty. Ernesto S. Salunat, pleaded not guilty. Trial proceeded against appellant only. Accused Villamor Asuncion remained at large. Thereafter, the trial court rendered the assailed Decision. Hence, this appeal. The Facts Version of the Prosecution The prosecution presented witnesses Corazon and Pedro Dayao and Lolita Ambre to testify on the circumstances of the crime; and Dr. Teodomiro Hufana Jr., on the results of the autopsy he conducted. Corazon Dayao, 25, married, was visiting at the Ambre residence to see her husband Pedro, who was the driver of Mr. & Mrs. David Ambre. That evening of September 18, 1987 at about 7:30 o'clock, she was in the terrace of the victim's house sorting dirty clothing. The night was dark and it was raining, but a Coleman lamp was placed atop the cement railing (pasamano) of the terrace, lighting an area a terrace rail separated her from David, who was around half a meter away from her.

She noticed Lolita beside her husband. Just then, she heard five (5) successive gunshots, and she saw David fall prostrate to the ground. Seeing that David wanted to say something, she called Lolita's attention and said "Manang, adda kayat nga ibaga ni Manong kenka. (Ate, it looks like Kuya has something to tell you.)" 4 She pulled Lolita towards the victim. Lolita asked her husband who had shot him and the latter answered, "It was Pare Pran." 5 She heard David's words because, like Lolita, she had also placed her head near David who was still alive at the time. Lolita Ambre, the widow, testified that she and her husband had just come out of their canteen. She washed her feet while her husband, facing north, looked at the driver's side of their jeep. Then she heard a gunshot and her husband cried, "Apo!" Startled, Lolita jumped up and down until she was told by Corazon that her husband wanted to tell her something. When she went near him, he said, "Pare Pran." 6 She knew that her husband was referring to Francisco Santos, the godfather of their youngest child. She held her husband, but their driver took her inside the house. Lolita, the widow, 34, housekeeper, gave a sworn statement 7 to Pfc. Domingo D. Cuntapay on September 25, 1987 implicating only Asuncion. The following day, during the preliminary investigation, she executed an affidavit before Judge Felipe Castaneta, disclosing that her husband's assailant was Francisco Santos. 8 On October 5, 1987, she executed another sworn statement before Pfc. Cuntapay reiterating her previous statement to Judge Castaneda. 9 Pedro Dayao Jr., 29, the Ambre spouses' driver, testified that he was inside the Ambres' house that evening, rolling a rope, when he heard five (5) gun bursts. It was followed by the cry of Lolita bellowing, "Jun, they have shot your Manong!" 10 He rushed outside and then escorted Lolita and his wife Corazon back to the house. Dr. Teodomiro Hufana Jr., 58, married, municipal health officer of Maddela, Quirino, conducted an autopsy on the victim's cadaver. In his report, 11 the following postmortem findings appear: Gunshot wound (entrance) roughly oval in shape about-7 mm. in dia. surrounded by contusso-abraded colar located at the postero-lateral aspect of the left side of the body and about 7 cm. below the angle of the axillary fossa, directed inward to the thoracic cavity injuring the left lung and bisecting the lower ventricle of the heart and injuring the right lobe of the lungs making an exit at the right hypochondriac region about 2 cm. in dia. and about 9 cm. below the nipple. Gunshot wound thru and thru at the latero-medical aspect of the distal third of forearm (entrance) about 6 mm. in dia. medial aspect making an exit at the lateral aspect of the forearm with a distance between the entrance and exit about 1.3 cm. Cause of Death: Severe internal hemorrhage secondary to gunshot wound. He further clarified that, although the Certificate of Death he issued indicated that the "Interval Between Onset and Death" was "instant," he was sure the victim still had "a few seconds or minute" before he actually died. 12 He opined that during those few seconds or minute; it was possible for a victim to utter "about two or three words," which could be "audible" and "intelligible." Death due to bullet wounds in the heart or lungs is not as instantaneous as that due to a bullet in the head. Version of the Defense Testifying in his own behalf, appellant, 41, married, declared that he and the deceased had treated each other like brothers. Interposing alibi, he swore that when the crime was committed, he was at his house waiting for his sick sister's arrival from Baguio. He did not leave his house until the following day when he learned of the victim's death. He and his wife even went to visit the wake of the deceased. 13 He further denied that his alias was "Pran." It was Frank. 14 He also testified that a certain Mrs. Zeny Bayaua, a close friend of the widow, approached and admitted to him, "I know that you are not the one who killed, but you tell us those persons who killed." He told her that he did not know the identity of the victim's killer. 15

To buttress this, the defense counsel, Atty. Ernesto Salunat, 44, married, testified that on one occasion, Mrs. Bayaua asked him to "(p)lease convince your client Mr. Santos to tell who really killed Mr. Ambre." He retorted that he was concerned only with appellant; to which Lolita and Mrs. Bayaua responded, "Kung sabihin lang ni pare Frank kung sino ang pumatay sa asawa ko hindi namin siya ididiin. " 16 The defense also presented Mariano Pimentel, 49, married, Governor of Quirino, who testified that his cousin-in-law Zeny Bayaua told him, "Manong adda gayam kenka ni Francisco Santos. Manong awan met ket ti basol na ngem pinabasol mi laeng isuna tapno ipudno na no asinno ti talaga nga pimmatay. (Kuya, Francisco Santos is staying with you; actually, Kuya, he is not the real assailant but we just put the blame on him to pressure him to say who the real culprit is.)" 17 He summoned appellant who used to work as a janitor in the capitol during weekends. He was told by appellant that he (appellant) did not know who killed the victim. Hence, he told appellant to tell his lawyer what he had heard from Mrs. Bayaua. Dr. David Longid, 42, a physician-surgeon and a former municipal health officer in Tabuk, was called as an expert witness to establish that the death of the victim was instantaneous. However, Dr. Longid admitted that the "interval between onset and death" of a person who had sustained wounds in the heart and lungs depended on the caliber of the gun used and on his physical makeup. If he was of strong build, his heart would still pump blood for a while and it would take more than ten seconds before he would die. He declined to state whether it was impossible for the victim to speak during those few seconds preceding death. 18 The Trial Court's Ruling The trial court considered the words of the victim as a dying declaration and a positive identification of appellant against which the latter's defense of alibi, the weakest defense in criminal cases, cannot prevail. Issues In his brief, I The lower court erred in believing that the victim David Ambre made an alleged dying declaration, despite evidence that death was instantaneous and that he could not have uttered imputing words after he was shot. II Assuming that the deceased could have made a dying declaration, the trial court nonetheless erred in finding appellant to be the culprit although what was supposedly uttered by the deceased were merely the words "Pare Pran." III The court a quo erred in totally believing prosecution witnesses Lolita Vda. De Ambre and Corazon Dayao as regards their having allegedly heard the deceased impute the crime to appellant, although the circumstances then obtaining negate such testimonies. IV The lower court erred in convicting appellant of the crime charged, instead of acquitting him therefor. The threshold issue is whether the last words of the deceased qualify as a dying declaration sufficient to sustain appellant's conviction.
19

appellant assigns the following alleged errors of the trial court:

Appellant contends that the victim had no chance to make a dying declaration, let alone make any utterance, in view of his instantaneous death; that assuming arguendo that he was able to do so, the uttered words failed to impute the crime to him; and that, under the circumstances, it was incredible for the prosecution witnesses to have heard the deceased say anything. These contentions are not persuasive. We shall discuss the issues in seriatim. First Issue: The Instantaneous Death The evidence on record does not at all support appellant's contention that the victim died instantaneously as to render a dying declaration physically impossible. Despite the statement in the victim's Certificate of Death that the "interval between onset and death" was "instant," the undisputed fact as positively and categorically testified to by Corazon and Lolita is that the victim remained alive for a few seconds during which he was able to say "Pare Pran." This view is bolstered by the expert witnesses, Dr. Hufana and Dr. Longid himself who was presented by the defense, who both testified that a bullet that had hit the heart and lungs did not necessarily result in instantaneous death. The testimony of the two doctors is bolstered by experts on the matter. Thus Pedro Solis, in his treatise on legal medicine, states: The heart may fail and cause death due to an existing disease independent of trauma. Coronary insufficiency, myorcardial fibrosis, valvular lesion or tamponade due to the rupture of the ventricle are common lesions. Wounds of the heart are produced by sharp instruments, bullets or the sharp ends of the fractured ribs. Contusion of the heart is easily produced on slight trauma on account of its vascularity. Wounds of the ventricle if small and oblique are less dangerous than those of the auricle because of the thickness of its wall. The right ventricle is the most common site of the wounds due to external violence, because it is the most exposed part of the heart. Foreign bodies like bullets, shrapnels, fragments of a shell may be embedded in the myocardium without any cardiac embarrassment. The person may live for a long time and may die of some other causes. 20 (Emphasis supplied.) Solis opines further that a victim who has sustained injury to the heart may still be capable of a volitional act like speaking, thus: Sometimes it is necessary to determine whether a victim of a fatal wound is still capable of speaking, walking or performing any other volitional acts. A dying declaration may be presented by the prosecutor mentioning the accused as the assailant; the offender may allege that the physical injuries inflicted by him while the victim was inside his house and that he walked for some distance where he fell, or that the victim after the fatal injury made an attempt to inflict injuries to the accused which justified the latter to give another fatal blow. The determination of the victim's capacity to perform volitional acts rests upon the medical witness. . . . Wounds of the big blood vessels, like the carotid, jugular or even the aorta, do not prevent a person from exercising voluntary acts or even from running a certain distance. Penetrating wound of the heart is often considered to be instantaneously fatal but experience shows that the victim still be capable of locomotion.Rupture of the organs is not always followed by death. The victim has for sometime still retains (sic) the capacity to move and speak. 21 (Emphasis supplied.) In People vs. Obngayan, 22 the Court resolved a similar issue of whether the victim could have been conscious, notwithstanding the serious nature of his injuries, when his antemortem statement was taken. The Court observed: . . .(')The question as to whether a certain act could have been done after receiving a given wound,(') according to Wharton and Stilles (Vol. III, Medical Jurisprudence, p. 212), "is always one that must be decided upon the merits of a particular case." They cited a case from Vibert's Precis de Med. Leg., 4th ed., p. 286, where a man after being shot in the chest threw a lamp at his adversary.

The lamp started a fire; and to extinguish the fire, the wounded man fetched a pail of water from the court yard. When the fire was extinguished, the man lay down on bed and died. Vibert performed the autopsy, and found that the left ventricle of the heart had been perforated by the revolver's bullet. It is evident from the foregoing that Dr. Acosta's assertion that the victim of a gunshot wound immediately loses consciousness, after infliction of the wound, may not be true in all cases. . . In the case at bar, it is therefore not amazing that the victim, despite his wounds, did not immediately lose consciousness and was still able to recognize his assailant and relay the latter's identity to his wife. Furthermore, the interval between the shooting and the utterance of appellant's name did not preclude the possibility of a dying declaration. Corazon testified that all these took place for a "short time only." 23 Lolita described the same period in this wise: 24 Q And what did you do immediately after having heard the gun report? A I was jumping and jumping, sir. Q For how long more or less? A A short time when the wife of the driver called me to attend (sic) my husband, sir. Q Now, this is very important which I would like you to state, at that short period of time in your estimation, how many minutes? A I could not estimate, sir. Second Issue: Dying Declaration We affirm the ruling of the trial court's decision to consider the victims revelation to Lolita and Corazon as a dying declaration and as a part of res gestae. That the last words were uttered by the deceased is established by the testimony of Corazon, 25 thus: Q What did you do when you saw David Ambre laid flat from (sic) the ground? A I called for his wife because he wanted to tell something, sir. Q Who wanted to tell something? A David Ambre, sir. Q Do you mean to tell that David Ambre still alive when you saw him? (sic) A Yes, sir. Q And what did you do when you saw David Ambre wanting to say something? A I pulled his wife and we put our ear(s) near the mouth of David Ambre, sir. Q And what happened next when you went near the body of David Ambre? A The wife asked from David Ambre who shot him, sir: Q And what did David Ambre tell his wife? A He told "it was Pare Pran", sir. Q Do you know this Pare Pran being referred to by David Ambre? A Yes, sir. Q If he is in Court today, can you point at him? ANSWER Yes, sir. Q Not even calculate for how long? A It was shorter than when I was seated here, sir. Q Now? A Yes, sir. Q You mean coming from the place where you were or at the place where you were there and take at your seat? (sic) A The moment I seated here, sir.

QUESTION Will you point at the Pare Pran you mentioned who is now in Court today? The victim's wife, Lolita, COURT What was the cause of the death of your husband? ANSWER They shot him, sir. COURT When you say "they shot him", whom are you referring? ANSWER Francisco Santos, sir (Witness pointing to Francisco Santos, the accused in this case). FISCAL ANTHONY FOZ Why do you say that it was Francisco Santos who shot him? ANSWER My husband told me. QUESTION How did he tell you that it was Francisco Santos who shot him? ANSWER When my husband was shot, he told me that it was Francisco Santos who shot him.
26

A There, sir. (Witness stood up and pointed a man in a blue t-shirt and identified himself to be Francisco Santos.)

corroborated Corazon's testimony as follows: Q Will you describe to the court how he told you that it was Francisco Santos who shot him? A When he was shot, he shouted Apo! Q And after that, what happened next? A And Corazon Dayao called for me. Q And why did Corazon Dayao call(ed) for you? A Because my husband as if he wanted to say something from his look. Q Now, when you were called by Corazon Dayao that your husband David Ambre wanted to say something to you, what did you do? ANSWER I went near my husband, sir. COURT Put on record that witness is crying. FISCAL ANTHONY FOZ And what did your husband tell you? ANSWER He uttered "Pare Pran". QUESTION And do you know this "Pare Pran" that your husband is telling? ANSWER I know him, sir. (Emphasis supplied.)

A dying declaration is entitled to the highest credence because no person who knows of his impending death would make a careless and false accusation. 27 As an exception to the hearsay rule, the requisites for its admissibility are as follows: (1) the declaration is made by the deceased under the consciousness of his impending death; (2) the deceased was at the time competent as a witness; (3) the declaration concerns the cause and surrounding circumstances of the declarant's death; and (4) the declaration is offered in a criminal care wherein the declarant's death is the subject of inquiry. 28 It must be shown that a dying declaration was made under a realization by the decedent that his demise or at least, its imminence not so much the rapid eventuation of death is at hand. 29 This may be proven by the statement of the deceased himself or it may be inferred from the nature and extent of the decedent's wounds, or other relevant circumstances. 30

In the case at bar, the victim's declaration consisted of the words "Pare Pran." Under the circumstances, however, he could not have been expected to articulate his awareness of something so obvious the inevitability of his demise or to have the energy to do so. The nature and extent of said injuries underscored the seriousness of his condition and they later proved by themselves that the utterances of the deceased were made under a consciousness of an impending death. 31 That his demise thereafter came swiftly, although not instantaneously, further emphasized the victim's realization of the hopelessness of his recovery. 32 We stress that when a person is at the point of death, every motive for falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. It was the height of jocularity for appellant to have suggested that it was highly possible that the deceased mentioned his name to Lolita so that she would tell him to come to decedent's succor, or for another reason. Such conjecture finds no basis record. On the other hand, this speculation is belied by the clear, straightforward testimonies of Lolita and Corazon. Despite several attempts, counsel for the defense failed to make Lolita admit that the victim mentioned appellant's name for a vague and undefined purpose, other than to identify his assailant. 33 Lolita adamantly stuck to her testimony that her husband told her that he was shot by "Pare Pran." 34 The unrebutted testimony of Corazon further clarified that the victim said those words in answer to his wife's question as to who shot him. 35 The deceased's condemnatory antemortem statement naming appellant as deserves full faith and credit and is admissible in evidence as a dying declaration. his assailant

Furthermore, the same declaration was also properly admitted in evidence by the trial court as part of res gestae, and rightly so. A declaration made spontaneously after a startling occurrence is deemed as such when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances. 36 The utterance of the victim satisfies these three requisites. Clearly, it is admissible as part of the res gestae. The propriety and the significance of admitting the dying declaration of the victim under the rule on res gestae is explained by Mr. Justice Florenz D. Regalado, thus: The requisites for the admissibility of the victim's ante-mortem statement as part of the res gestae and also as a dying declaration are present in this case, hence the same should be admitted under both exceptions to the hearsay rule. (Citing People vs. Gueron, et al., L29365, March 25, 1983, 121 SCRA 115; People vs. Baltao, L-47686, June 24, 1983, 122 SCRA 859) While the admissibility thereof would naturally not be affected whether viewed under either or both consideration the advantage of resting the issue on the aforesaid dual bases is that its admission would be invulnerable to a theorized absence of an element of one of said exceptions. This is particularly important in this case, considering that the very identification of the assailant and the accuracy thereof are essentially based on that declaration of the victim. 37 (Emphasis supplied.) Third Issue: Credibility of Witness Appellant assails the credibility of the witness Lolita Ambre because of her delay in reporting the antemortemdeclaration. We do not agree. Well-settled is the rule that delay in reporting the antemortem declaration does not automatically render the testimony doubtful. Failure to reveal or disclose the assailant's identity at once does not necessarily affect, much less impair, the credibility of said witness. The initial reluctance to volunteer information about a criminal case and/or the unwillingness to be involved in criminal investigation due to fear of reprisal are common and have been judicially declared to have no effect on credibility. 38 Lolita's reason has been sufficiently explained in her testimony. While she did not intimate to the police that her husband had identified the assailant when she was interviewed on the night of the killing, she did reveal her husband's antemortem statement a week later. Such delay, however, was not without reason. Lolita testified:

QUESTION According to you, your husband told you that it was the accused Pare Pran who allegedly kill(ed) your husband, is it not? ANSWER Yes, sir. Q You were investigated by the Police on September 25, 1987, is that correct? ANSWER Yes, sir. ATTY. SALUNAT Did you mention to the Police that it was accused Pare Pran who killed your husband? ANSWER No, sir. QUESTION In other words, when you were investigated, you never mentioned that it was Francisco Santos who allegedly killed your husband? ANSWER Not yet sir because I was still afraid at that time because the accused was not yet apprehended that time.

Q You were afraid to tell the Police that Francisco Santos was the villain because he was not yet arrested? A Yes, sir. Q Is it not a fact that when you identified Francisco Santos, the Police will arrest him? A Yes sir, it was Villamor Asuncion who told the Police that they have to arrest Francisco Santos. Q You love your husband? A Yes, sir. Q In fact you are crying because you love him so much? A Yes, sir. ATTY. SALUNAT So, why did you not tell the Police who killed him? ANSWER Because I was afraid that I would be the next victim because he was not yet arrested.39

Fear was therefore the compelling reason why Lolita did not divulge the identity of appellant when the police first investigated her. Self-preservation is, after all, the most fundamental of human instincts. 40 The following day, she lost no time in executing a sworn statement on the matter. She repeated the information before the municipal judge who conducted the preliminary investigation and thereafter to the fiscal. On the witness stand, she remained steadfast on the matter notwithstanding a grueling cross-examination. Moreover, Corazon also heard the victim's antemortem declaration. She executed a statement to the police also on September 26, 1987. Even at the trial of the case, she adhered to her earlier account of what she heard the victim say. Furthermore, the trial court found the testimonies of Lolita and Corazon to be credible. Because a trial court has the opportunity to observe the witnesses firsthand and to note their conduct and demeanor at the witness stand, its findings on their credibility deserve great weight and respect. In the absence of any showing that the trial court has overlooked, misapprehended or misinterpreted such facts or circumstances that materially affect the disposition of the case, its conclusions on the credibility of witnesses should not be disturbed. 41 We have examined the records of this case and we have been unable to find any reason and the appellant has not shown any to depart from this rule. Fourth Issue: Alibi vs. Dying Declaration Alibi is one of the weakest defenses that can be resorted to by an accused, not only because it is inherently weak and unreliable, but also because it is easy to fabricate without much opportunity to check or rebut it. To establish alibi as a valid defense, an accused must show that he was at some other place for such a period of time and that it was physically impossible for him to have been at the place of the crime during its commission. 42

In the present case, appellant failed to establish the physically impossibility of his presence at the scene of the crime at the time of its commission. He anchored his defense on the fact that at that time, he was in his house which was only about 500 meters from the Ambre residence. 43 Furthermore, alibi is unavailing as a defense where there is positive identification of the accused as the perpetrator of the offense, or when there is an antemortem declaration received in evidence either as a dying declaration or as part of res gestae, 44 or both. Treachery On the other hand, treachery qualifies the killing as murder. This qualifying circumstance of alevosia is present when an offender employs means and methods or forms in the execution thereof which tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. 45Under the cover of darkness, appellant shot an unarmed and unsuspecting victim. The shooting was swift and without warning. The wounds sustained by the victim bespeak of the futility of any defense he could have mounted under these circumstances. Means, method or form was obviously employed in the execution of the felony which insured its commission without risk to assailant coming from any defense which the victim might have taken. 46 The allegation in the Information on the use of an unlicensed firearm in this case has alerted the Court to appellant's possible separate criminal liability under Section 1, Presidential Decree No. 1866, following the ruling inPeople vs. Quijada. 47 However, a thorough review of the records reveals that the prosecution abandoned its case against appellant for illegal possession of an unlicensed firearm. No gun was ever recovered nor presented in evidence, much less proven to be unlicensed. Thus, the Quijada ruling finds no application in the case at bar. All things considered, appellant has been proven guilty beyond reasonable doubt of the murder of David Ambre. WHEREFORE, the appeal is hereby DENIED. The assailed decision is AFFIRMED, except that the indemnification to the heirs is INCREASED to P50,000.00 in line with prevailing jurisprudence. SO ORDERED.

G.R. No. 112687 June 19, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABNER EUBRA y BARTOLOME, accused-appellant. REGALADO, J.: Accused-appellant beseeches us to reverse the judgment of the Regional Trial Court of Virac, Catanduanes, Branch 43, in Criminal Case No. 1863, declaring him guilty of murder 1 which, according to the information filed thereof on January 9, 1992, was committed as follows: That on or about the 10th day of November 1991, at Barangay Bagawang, Municipality of Pandan, Province of Catanduanes, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and with treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously shoot, one Abel Angeles with an unlicensed firearm, hitting him mortally at the back of his body which resulted to the victim's death to the damage and prejudice of his heirs. That this offense is aggravated by nighttime and use of an unlicensed firearm, as provided by Section 1, par. 2, P.D. No. 1866. 2 On February 13, 1992, appellant, duly assisted by counsel, pleaded not guilty to the information. On June 21, 1993, the trial court rendered its decision finding appellant guilty beyond reasonable doubt of murder, and with the following decretal portion: WHEREFORE, finding the accused GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code, he is hereby sentenced to suffer the penalty of reclusion perpetua. The accused is likewise adjudged to pay the heirs of the victim the amount of FIFTY THOUSAND (P50,000.00) PESOS, by way of indemnity, and FIFTY THOUSAND (P50,000.00) PESOS, by way of actual and compensatory damages, and to pay the costs. 3 The court a quo has made a commendably well-written presentation of the contending evidence of the parties, and we have decided to sequentially reproduce the pertinent portions thereof, firstly, so that the significant details thereof may not be lost in the synthesizing process, and, secondly, such evidence recited in extenso will readily distinguish this case from other decisions involving unlawful killings with the use of supposed illegally possessed firearms, as hereafter discussed. Dr. Wilfredo P. Santelices testified on the medico-legal certificate (Exh. A) and the certificate of death (Exh. B). In the certification issued, the deceased suffered: (a). A gunshot wound 1 cm x 1 cm paravertebral area at level of T-T (1) point of entry and (b). gunshot wound 2 cm x 2 cm mid clavicular line 1st intercostal space (L) point of exit. He was admitted (at) 8:15 P.M. on November 10, 1991 and expired at 9:10 P.M. on the same date. No powder burns at the point of entrance of the wound were found and the wound of exit was about four inches above the wound of entrance. The victim was shot from behind. Antonio Angeles testified that at more o(r) less 8:00 P.M., while on his way home to Paric, he noticed that he was being followed. With the aid of his flashlight, he saw the accused point a gun at him. He ran away and hid in the forest behind the church of Bagawang, then proceeded to the house of Rodolfo Eubra where Roberto Olesco informed him of the death of his brother, Abel Angeles. On his way to Pandan District Hospital, he dropped by the police station so that a statement could be taken from his brother Abel. While in the hospital he asked the already serious Abel who shot him and was told that it was the accused. PO3 Jaime del Valle, the policeman on duty, proceeded to Pandan District Hospital and asked the victim as to the identity of his assailant. The victim pointed to Eubra. Inasmuch as the victim was no longer in a position to write, he just affixed his thumbmark on the written interrogation (Exh. D) in the presence of Dolores Evangelista and Julie Salazar.

Sulpicio Trinidad was fetching water from the faucet near his house in Bagawang, Pandan, Catanduanes, when he saw the accused walking alone on November 10, 1991 at around 7:30 P.M. towards the direction of the house of Teodorico Trinidad which was fifteen (15) meters away from Trinida'ds place. The distance between him and the accused when the latter passed by was about three meters. A few minutes later, he heard a gunshot followed by a cry for help from Lilia, the wife of Teodorico. On his way to the said house, he saw the accused walking towards the east with a gun in his hand. It was only a matter of seconds from the time he saw the accused running away from the time when he saw the victim with a wound on his breast being helped by Mauricio Angeles and Roberto Olesco. Trinidad claimed he had known the accused ever since he was a small boy, they being barriomates. Teodorico Trinidad was the owner of the house where the shooting incident happened. On November 10, 1991, they had a drinking spree in his place with Mauricio Angeles, Roberto Olesco, Crisanto Angeles and the victim. They were facing each other around the table in the kitchen. The victim was sitting on a stool at the end of the table with his back towards the wall (Exh. G). At around 7:30 P.M., he heard a gunshot outside the kitchen. He rose from his seat and opened the kitchen door. About two meters away, he saw the accused holding a revolver, walking towards the east. Afraid that he might be shot next, he closed the door. He informed his companions that he saw the accused. They brought the victim to the hospital. On the witness stand, he identified several photographs, particularly his house (Exh. H); the encircled hole where the bullet entered (Exh. H-1); the hole where the bullet exited (Exh. H2); the rattan line showing the projection of the bullet (Exh. H-3 and Exh. H-3-A) and the stool where the victim was seated. When the victim was hit, he was sitting with both his elbows on the table and his body bent a little forward. Witness admitted that he executed his affidavit only on December 4, 1991 for fear of the accused who previously hacked the screen of his store sometime in February 1991. Zoe Angeles (sic, Santileces), the barangay captain of Bagawang, Pandan, Catanduanes, testified that the hole where the bullet passed through smelled of gun powder. In the presence of two members of the barangay council, he found the slug (Exh. I) which he turned over to the police authorities. He was also present when photographs of the scene of the incident were taken. With the use of a rattan, one end of which he placed through the hole where the bullet entered and the other end, through the hole where the bullet exited, they were able to determine the trajectory of the bullet. By re-enacting the position of the victim at the time he was shot, the rattan touched the portion of his left arm. Again, standing near the wall, his nipple was on level with the hole of entrance. He was 5'4" in height and about one inch shorter than the accused. Venerando Sanchez was the Deputy Station Commander who saw the accused wiping his hands with a face towel soaked in vinegar while inside his detention cell on November 13, 1991, when the accused learned that the relatives of the victim were requesting that a paraffin test be conducted on him (accused). The last prosecution witness was Elizabeth Angeles, the widow of the victim. She testified that the accused had an axe to grind against her husband. Sometime in 1987, her husband filed a case against the accused for threats to kill. This was amicably settled, however. In February 1991, the accused threatened again the victim's life when he testified against the accused for hacking the screen of the window of Teodorico Trinidad. The accused was imprisoned for fifteen days. In the morning of November 10, 1991 while the victim and his wife were taking breakfast, she was informed by him that the accused threatened him again when they were buying meat in the house of the victim's brother. Although the incident was not reported to the police authorities, she, however, advised her husband to be careful. She claimed that her husband was the sole breadwinner in the family with three children to support. Her husband earned P200.00 to P500.00 a week by repairing watches and radios. On account of his death, she spent P23,000.00. 4 It will be observed that although the information alleged that appellant used an "unlicensed firearm," the entirety of the prosecution's evidence made no mention of any evidence on such fact nor was there any attempt to prove the same, despite the vital role and significance thereof under Presidential Decree No. 1866. The foregoing, therefore, constitutes the totality of the case for the prosecution.

We now turn to the evidence for the defense consisting of the testimonies of Dr. Wilfredo P. Santelices, Gracia Bartolome, William Eubra, Lydia Eubra, the appellant himself and some exhibits, the trial court's recapitulation whereof we shall quote in equal measure. Dr. Santelices testified that based on the testimony of Teodorico Trinidad regarding the distance of the hole of entrance of the bullet and the hole where the bullet exited, the trajectory of the bullet was downwards. On a photocopy of a human body, he drew a line showing the upward trajectory of the bullet as it entered the body of the deceased. Gracia Bartolome, the aunt of the accused, testified that from 3:00 P.M. until more or less 9:00 P.M. on November 10, 1991, the accused and his wife and some other persons were together in a drinking spree. When she and her husband attended the baptismal party in the house of Mr. and Mrs. Felizardo Fernandez at 3:00 P.M., the accused and his wife were already there with three other guests. They were able to consume six bottles of gin. The baptismal party ended at 6:00 P.M. and thereafter, the accused, Lydia, Leonito Fernandez, she and her husband went to their place and took a rest. They later transferred to the house of Sylvia Trinidad across the street and consumed four bottles of Beer Grande. At around 7:00 P.M. she saw Antonio Angeles pass by carrying a kerosene lamp. He refused the offer of drink saying he was already drunk and was on his way home to Paric. A little later, Zoe Angeles (sic, Santileces) came looking for his grandchild Norman. After the barangay captain left, two policemen looked for her husband to accompany them to the house of Willy Eubra. At around 9:00 P.M. two policemen picked up the accused. It was she and the wife of the accused who met and talked with the policemen. The accused just stayed inside the house and refused to go with the police officers until prevailed upon by the barangay captain (TSN, August 14, 1992, pp. 13-15). She testified on cross-examination that the distance of her house to the house of Teodorico Trinidad was about 100 meters and the normal time to reach it was less than thirty minutes when walking slowly (Id., pp. 22-23). She emphatically declared that from 3:00 P.M. to 9:00 P.M., she never left him out of her sight, not even when he urinated. When the accused left her residence to urinate, he just went near an avocado tree (Id., p. 26). The accused was not drunk on that particular date and time (Id., p. 27). William Eubra, the brother of the accused, was in his house on the night November 10, 1991 when two policemen picked him up. The police officers informed him that he was pointed to by Arnold Angeles as having shot the victim. He meekly went with the two policemen (TSN, November 16, 1992, p. 6). In front of the house of Teodorico Trinidad, he was told to go home, so he went home. Lydia Eubra, the wife of the accused testified on the conversation between the defense counsel, Atty. Juan Atencia, and Jose Trinidad last May 29, 1992 in the house of her fatherin-law. The accused, when placed on the witness stand, impugned the credibility of prosecution witnesses Antonio Angeles, Sulpicio Trinidad, Teodorico Trinidad and policeman Venerando Sanchez. He averred that from 3:00 P.M. until 9:00 P.M. of November 10, 1991, he never left the group he was drinking with. He urinated once in the place of Leonita Fernandez, but he never left the house (TSN, December 14, 1992, p. 30). 5 Finally, the lower court reports that, on rebuttal, Zoe Santelices denied that he went to the house of Sylvia Trinidad, as claimed by Gracia Bartolome. He averred that on that particular date and time, his grandson was employed with the Manila Knitting Company in Manila. The only time he went there was when he accompanied the police officers to pick up appellant although he did not go up the house with them. 6 Before us, appellant now assigns, as errors committed the court below, its findings that (1) the accused is guilty beyond reasonable doubt of the rime of murder, and (2) that treachery attended the killing of Abel Angeles. 7 We find such imputations to be baseless and without merit.

The issues in this case principally rest on credibility. In this respect, the time-honored rule virtually calcified by repetition is that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. 8 This is obviously so since the judge below is in a better position to pass judgment on the issue because it is he who personally heard the witnesses testify and observed their deportment and manner of testifying. Thus, his evaluation deserves no less than the highest respect of the appellate court. 9 In the case at bar, there was no eyewitness to the actual shooting of the deceased. However, the prosecution's evidence, although circumstantial in nature, is of a sufficient quantum to establish the guilt of appellant beyond peradventure of a doubt. It is not only by direct evidence upon which guilt may be predicated. The accused may be convicted on circumstantial evidence. 10 Circumstantial evidence may be sufficiently cogent to satisfy the judicial conscience, and may be as potent as direct testimony in tending to connect the accused with the commission of the offense. 11 Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for conviction if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 12 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. 13 Undoubtedly, the requirements for circumstantial evidence to sustain a conviction are present in this case. The sequence of events hereunder individually summarized constitutes sufficient circumstantial evidence on the bases of which the guilt of appellant may be logically predicated and validly concluded. In the morning of November 10, 1991, the victim related to his wife that while he was buying meat at the house of his brother, appellant threatened to kill him. 14 Appellant significantly admitted that he was in that place in the morning of November 10, 1991, although he denied that he saw the victim. 15 Later in the evening, the victim's brother, Antonio Angeles, while on his way home, noticed that he was being followed. He focused his flashlight and saw appellant pointing a gun at him. He immediately ran away and hid in the forest behind the church. 16 This fact was again confirmed by appellant himself and his witness who testified that they saw Antonio on the night of November 10, 1991. 17 Moments thereafter, Sulpicio Trinidad saw appellant pass by him proceeding towards the back of the house of Teodorico Trinidad. Sulpicio was certain that appellant was the person who passed by, because the place was sufficiently illuminated by the light coming from the nearby houses and he has known appellant since he was still a small boy. 18 At that precise time, the victim was having a "drinking spree" with Teodorico Trinidad and some other friends in the kitchen of Teodorico's house. The victim was sitting on the stool at one end of the table with his back facing the kitchen wall. 19 Shortly thereafter, the victim was shot from behind, the bullet coming through a hole in the kitchen's wall, entering the back of the victim, and exiting from his chest. 20 After hearing the shot, Teodorico Trinidad, the owner of the house, immediately rose from his seat and opened the kitchen door. From a distance of about two meters, he saw appellant with a gun, fleeing posthaste towards the east. 21 The gunshot also caught the attention of Sulpicio Trinidad, who likewise saw appellant holding a gun and hastily proceeding east. 22

Two days after his arrest, the Deputy Station Commander noticed appellant wiping his hands with a face towel soaked in vinegar evidently in an attempt to erase traces of gunpowder burns as he had learned that the victim's relatives were requesting that a paraffin test be conducted on him. 23 The truth of that fact was reluctantly and indirectly affirmed by appellant when he testified to this effect: Q: By the way, policeman Venerando Sanchez said that on November 13, while you were under detention at the municipal jail of Pandan, he saw you wiping your hands with a face towel with vinegar, what do you say to that? A: That is not true, sir. Q: But, did you have vinegar in that jail on November 13, 1991? xxx xxx xxx COURT Venerando Sanchez mentioned he saw the accused washing himself with a hand towel soaked in vinegar. Q: Do you know of any reason why Venerando Sanchez would testify for the prosecution in this case?

A: Yes, sir. I have vinegar during that A: I don't know, sir. 25 time because I dipped the "tinapa" which I was eating in that vinegar. 24 Moreover, in addition to the aforementioned circumstances, appellant's motive for the commission of the crime was satisfactorily established by the prosecution. Sometime in 1989, as earlier narrated, the victim stabbed appellant, prompting the latter to charge him criminally. The case, however, was amicably settled. Then, in February, 1991, appellant threatened to kill the victim because the latter reported to the police that appellant hacked the screen window of Teodorico Trinidad. The victim charged appellant with grave threats, which resulted in the latter's imprisonment for fifteen days sometime in September, 1991. 26 Contrary to the denial of appellant, he did have the opportunity to commit the crime. The estimated distance between the scene of the crime and the place where appellant was present at the time the incident took place was between 70 and 250 meters. Defense witness Gracia Bartolome testified without contradiction that to reach the house of Teodorico Trinidad from their place would take less than thirty minutes even when one is walking slowly.27 We have endlessly stressed that for the defense of alibi to prosper, the accused must prove that he was at another place for such a period of time that it was physically impossible for him to have been at the locus delictiwhen the offense was committed. 28 It has been ruled that a distance of 1 to 2 kilometers from the scene of the crime is a weak alibi. It does not exclude the accused from the possibility of committing it. 29 This is the present quandary of appellant from which he has not managed to extricate himself. Appellant tries to cast doubt on the veracity of the testimonies of the prosecution's eyewitnesses on the ground that they are relatives of the victim. The argument per se carries no weight whatsoever. We have consistently held that mere relationship of a witness to the victim does not impair his credibility as to render his testimony unworthy of credence where no improper motive can be ascribed to him for so testifying. 30 There being no ill motives which can be attributed to the prosecution witnesses in the present case, their positive and categorical declarations under the solemnity of an oath on the witness stand deserve full faith and credence. On the matter of the supposed dying declaration of the victim, we agree with appellant that the same cannot here be given weight, even assuming that the requisites for its admission are present. Admissibility is one thing, and weight is another. A dying declaration of the victim identifying his assailant will not be given probative value if the victim was not in a position to identify his assailant as he was shot from behind. 31 However, even without that extrajudicial confession, the circumstantial evidence presented by the prosecution unerringly points to appellant as the author of the crime charged. With respect to the second assignment of error, the trial court correctly appreciated treachery to qualify the killing to murder. The victim was deliberately shot from behind, leaving him with no opportunity to evade or put up a defense against such an unexpected and fatal assault on his person. Where a victim was totally unprepared for the unexpected attack from behind and had no weapon to resist it, the shooting cannot but be considered as treacherous. 32

As hereinbefore stated, we have taken pains to set out in full the evidence adduced by the prosecution in order to make it clear that this case does not belong to the genre illustrated by People vs. Tac-an 33 and People vs. Caling,34 et seq., regarding the Court's present categorization of the aggravated form of illegal possession of firearms. It is true that the victim in the case at bar was allegedly killed by "the use of an unlicensed firearm, as provided by Sec. 1, par. 2, P.D. No. 1866;" but the difference lies in the fact that appellant was not charged with illegal possession thereof as a concomitant element of the murder. In fact, such unlicensed firearm was alleged in the indictment merely as a generic aggravating circumstance which, of course, it is not. More importantly, however, the summation of the People's evidence shows that there was no proof whatsoever that the firearm involved was illegally possessed. In People vs. Pajenado, 35 after reviewing previous conflicting rulings, we eventually held that "(i)t cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant . . . specifically alleged that he had no 'license or permit to possess' the .45 caliber pistol mentioned therein. Thus, it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it." This is the present doctrinal rule on the matter, following the unbroken reiteration of the Pajenado dictum in subsequent cases as catalogued in People vs. Macagaling. 36 In view of the abject failure of the prosecution to present any evidence on its allegation in the information that the subject firearm was illegally possessed, the same cannot be considered as a component or an element in the present concept of aggravated illegally possession of firearm nor, for that matter, as an aggravating circumstance. There being no aggravating or mitigating circumstances attendant to the crime, the trial court correctly imposed the penalty of reclusion perpetua, representing the medium period of the penalty of reclusion temporal in its maximum period to death, and which was the penalty imposable for the simple crime of murder in this case at the time of its commission. 37 WHEREFORE, the assailed judgment of the court a quo is hereby AFFIRMED, with costs against accused-appellant Abner Eubra y Bartolome. SO ORDERED. Romero, Puno, Mendoza and Torres, Jr., JJ., concur.