41.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Hagonoy, Davao del Sur, was at his residence in
vs. barrio Clib. In a short while he heard gunshots
GREGORIO LAQUINON, alias "JOLLY", defendant-appellant. coming from the bank of a river some three
hundred meters to the south of his house (pp. 4-6,
Accused Gregorio Laquinon was charged with the crime of tsn, Dec. 8, 1975). Then, his brother, Leocario
murder in the Court of First Instance of Davao del Sur for the Buat, arrived and told him that a man was
killing of Pablo Remonde, coated as follows:  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
That on or about November 13, 1972, in the
unidentified man was. His brother, Leocario and
Municipality of Hagonoy, Province of Davao del
the barrio councilman also arrived there. Samama
Sur, Philippines, and within the jurisdiction of this
Buat found the man lying on the sand and asked
Honorable Court, the above named accused, with
who he was. The man answered, "I am Pablo
treachery and evident premeditation, armed with a
Remonde" (pp 7-10, Id.). Remonde's two hands
gun and with intent to kill, did then and there
were tied on his back. He was lying face down (p.
willfully, unlawfully and feloniously shoot one
10, Id). 
Pablo Remonde with said weapon, inflicting upon
the latter wounds which caused his death. 
Samama Buat then took the "ante mortem"
statement of Pablo Remonde. He asked him who
After the trial, the lower court rendered a decision finding the
he was to which he answered that he was Pablo
accused guilty of the crime charged and sentenced him as
Remonde. Samama Buat asked "who shot you"
follows: 
and Remonde said that it was Gregorio Laquinon.
He asked Pablo Remonde whether from the
IN VIEW OF ALL THE FOREGOING, the Court gunshot wounds he suffered he would survive to
finds the accused guilty beyond reasonable doubt which the victim answered "I do not know" (pp. 11,
of the crime of murder, and imposes upon him the 19, 21, Id.; see also Exh. A, Folder of Exhibits).
penalty of reclusion perpetua (Art. 248, Revised After that, barrio captain Buat went to the
Penal Code); to indemnify the heirs of the municipality of Hagonoy and reported to Vice
deceased in the sum of P 12,000.00 and to pay Mayor Antonio Biran the shooting of Pablo
the costs.  Remonde. Vice Mayor Biran went to the scene of
the incident and asked the victim who shot him to
From the foregoing judgment, accused Gregorio Laquinon which the latter answered that he was shot by
interposed the present appeal.  Gregorio Laquinon (pp. 21 A to 23, tsn, Dec. 8,
1975). Pablo Remonde was placed on a jeep of
The People's version of the case is as follows:  the Vice Mayor and brought to the hospital (p. 23,
Id,). Pablo Remonde was admitted to the Canos
On November 13, 1972, at about 11:30 o'clock in Hospital in Digos, Davao del Sur where he was
the evening, Samama Buat, barrio captain of Clib, attended to by Dr. Alfonso Llanos. Dr. Llanos

1
 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).  judgment on the ground that the lower court erred in finding him
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 'cmmitted something,' he
2
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
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.
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. 

Nor does the testimony of Barrio Captain Samama Buat that the Second, if the deceased truly tried to flee, the
place was dark and that the victim had told him that he was shot logical thing he would do would be to flee away
by members of the KM make the deceased an incompetent from and not towards Cabardo; in doing the
witness. On the contrary, it strengthens the statement of the former he would turn to his right or to his left or
deceased since the accused is a member of the KM.  towards his back; if he fled to his left or right, or
towards his back, he would be exposing one side
But the dying declaration of the deceased Pablo Remonde is not of his body, or his back, and when fired upon in
admissible as an ante-mortem declaration since the deceased that position he would have been hit on one side
was in doubt as to whether he would die or not. The declaration of the body or at his back. The evidence — as
fails to show that the deceased believed himself in extremist, "at testified to by Dr. Llanos — however, shows that
the point of death when every hope of recovery is extinct, which is the deceased had only one wound a gunshot
the sole basis for admitting this kind of declarations as an wound, in the abdomen; this shows he was fired
exception to the hearsay rule." 
1 upon frontally, the bullet going through and
through the intestines and lodged, presumably in
It may be admitted, however, as part of the res gestae since the the bony portions of his back, that is why the slug
statement was made immediately after the incident and the (Exhibit "B") was recovered. The accused's
deceased Pablo Remonde had no sufficient time to concoct a version, therefore, that the deceased tried to flee
charge against the accused.  is hard to believe for being against the physical
facts. 
On the whole, We are satisfied with the findings of the trial court
that the accused was responsible for the killing of Pablo Now, if the accused is innocent, why should he
Remonde. We cite with approval the following observations of the relate such an incredible version? 
trial court: 
Oh what a tangled web they weave when first day
Indeed, the Court cannot believe that CO Cabardo practice to deceive. 
did the killing as related by the accused for the
following reasons:  — Sir Walter Sc

3
 With these observations, the Court cannot believe without risk to himself arising from the defense which the
that the accused really delivered the deceased to offended party might make. 
CO Cabardo and that it was Cabardo who shot
him. As testified to by him, their mountain camp WHEREFORE, with the modification that the indemnity to be paid
was raided by the PC two days after the incident, to the heirs of the deceased is increased to P30,000.00, the
as a result of which raid Cabardo and two of their judgment appealed from should be, as it is hereby, AFFIRMED.
companions were killed. The accused himself was With costs against the appellant. 
able to escape, went to hide in a relative's farm in
faraway Magpet, North Cotabato, did farming SO ORDERED.
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 42. PEOPLE OF THE PHILIPPINES, plaintiff, 
deceased was feeling strong, surely, under such vs.
circumstances it is hard to believe that the RODULFO SABIO, alias "PAPU", defendant. 
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 MELENCIO-HERRERA, J:
two hands were tied at his back. Accused, in shooting the victim,
obviously employed means or force in the execution of the Automatic review of the death penalty imposed upon the accused
offense which tended directly and specially to insure its execution Rodulfo Sabio alias "Papu", by the Court of First Instance of

4
Cebu, Branch II, in Criminal Case No. V-10804 for Robbery with
Homicide.  and long "maong" pants. Witness Camilo demonstrated that the
On October 5, 1965, at about 5:00 o'clock in the morning, in
Barrio Looc, Argao, Cebu, Catalino Espina, 80-years old, single,
owner of a small sari-sari store located in his house was found on
the second floor of his dwelling wounded on the forehead, from
which injury he died three days later.  able to speak only when bis head was raised. When Camilo
Prosecution witness JESUSA BIRONDO a fish vendor, testified
that at about 5:00 o'clock in the morning of October 5, 1965, as
she was preparing to go to the seashore, she heard a shout for
help coming from the house of her neighbor, Catalino Espina,
which was located just across the street from her house. She
recognized the voice as Catalino's. When she looked out of the
window she saw the accused Rodulfo Sabio, who is nicknamed
"Papu", coming out of the door of the store at the victim's house.
The accused was wearing a black shirt with sleeves up to the
elbow and dark trousers. She had known the accused since his
birth because his house is located at the seashore in Barrio Looc,
just about 40 meters from her own house, and she is familiar with
his appearance because she used to see him everyday passing
by her house or at the seashore. Jesusa felt scared so she
retreated from the window. Then she shouted for help. Shortly
thereafter, she saw from her window that many persons, about 50
to 100 neighbors, went to Catalino's house. The following day
after the incident, or on October 6, 1965, Jesusa told Police
Sergeant Jesus Alberca about what she heard and saw. She
executed a sworn statement on the same date.  1
CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew
of the victim, who had lived with the latter since childhood, left
Catalino's house at past 4:00 o'clock in the early morning of
October 5, 1965 to go fishing. At the seashore, he waited for
somebody to help him drag his boat to the sea from the elevated
support on which it was hoisted. The first person he saw was the
accused, Rodulfo Sabio, who came running past him about 6
meters away, towards his (Sabio's) house. The accused was
5
wearing a black T-shirt with sleeves reaching beyond the elbow
accused had his two hands tucked inside his shirt in front of the
stomach while running. Minutes later, a certain Enok Calledo
arrived and told Camilo to go home because his granduncle "Noy
Ino" had cried for help. When Camilo reached home, he saw "Ino"
(the victim) lying wounded upstairs. He was moaning and was
called the victim's name, the latter responded and told Camilo to
fetch a policeman. Calo noticed that the merchandise in the store
were in disarray and the tin can called "barrio, which he knew had
contained the cash sales for Sunday and Monday of about P8.00
because they counted the money the previous night, was lying
empty on the floor. When police officers Paulino Fuentes and
Pedro Burgos arrived, Patrolman Fuentes asked "Manoy Ino"
questions which, together with the answers, he wrote on a page
torn from a calendar hanging somewhere in the room.   Patrolman
2
Fuentes then instructed Camilo to take the victim to the town
dispensary at Argao, Cebu, where he was treated. But because
the victim's condition was considered serious he was immediately
transferred to the Southern Islands Hospital where he died three
days later. 
3
PAULINO FUENTES, a policeman assigned at the municipal
building of Argao, Cebu, received a report at about 5:30 o'clock in
the morning of October 5, 1965, that Ino Espina was hacked in
barrio Looc He and another policeman, Pedro Burgos, proceeded
to the victim's house where he saw the latter lying on the floor,
wounded and bleeding on the forehead. Patrolman Fuentes
asked the victim who had hacked him and the latter answered
that it was "Papu" Sabio, son of Menes According to said
Patrolman, the person referred to was the accused, who, as well
as his parents, have been known to the witness for the past three
years. Patrolman Fuentes asked the victim why "Papu" hacked
him and the latter answered that "Papu" had demanded money
from him. Patrolman Fuentes also asked the victim how much
money he had lost but the latter was not able to answer that
question. Sensing that the wound was serious since it was
bleeding profusely Patrolman Fuentes decided to take down the
statement of the victim. He detached a leaf from a calendar and
wrote down on it the questions he propounded as well as the
answers of the victim. He then had it thumbmarked by the victim
with the latter's own blood as no ink was available. Present at the
time were Pedro Burgos, another police officer, and Camilo
Semilla, the grandnephew. Patrolman Fuentes himself and Pedro
Brownish fingerprin1.
Paulino
Thereafter, Patrolman Fuentes advised Camilo Semilla to bring
the victim to the hospital. Patrolman Fuentes observed that the
things of Catalino and the store items like canned sardines were
all in disarray while the tin can ("barro") was already opened. 
6

Burgos signed as witnesses.

On October 5, 1965, DR. MELITA REMOTIGUE ANO resident
Reproduced hereunder in full is the said statement:  physician at the Southern Islands Hospital, Surgery Department,
found that the victim had suffered "compound fracture on the
skull, bilateral at the front parietal area" with "laceration and
Antemortem
cerebral contusion." From the nature of the injuries, she opined
that the same could have been inflicted by a sharp instrument or
The English translation reads:  by a bolo, and although the laceration was not too deep as to
cause instaneous death, the injury was fatal because it had
Q — What is your name? 
injured the brain.
7

A — Catalino Espina 
The prosecution also offered in evidence and as part of the cross-
Q — From where are you? examination of the accused a letter dated February 17, 1966 of
the Cebu Provincial Warden,  showing that the accused had been
8

A — From Look, Argao, Cebu.  previously convicted by final judgment and had served sentence
for two previous crimes of Theft committed in the years 1963 and
Q — Who slashed you and robbed you? 1964. 

A — Rodulfo Sabio (Papu) the son of Menez Testifying in his defense the accused RODULFO SABIO, 18
from Look 
years old, a fisherman, claimed that in the evening of October 4,
1965, he was at home listening to the radio till past 9:00 o'clock
Q — If you will die, who is responsible for
your death?  after which he went to sleep until about 6:00 o'clock in the
morning of the next day, October 5, 1965, when he was
A — Only Papu Sabio is responsible for my awakened by his younger brother who said that certain policemen
death.  were looking for him. The policemen took him to the municipal
building and incarcerated him without asking any question. He
Q — Are you going to sign this or affix your was released the next day, October 6, but was arrested again on
fingerprint? 
November 24, 1965 at P. del Rosario Street in Cebu City. The
accused admitted that he knew witness, Camilo Semilla, because
A — Yes. 
they were neighbors he denied that Camilo had seen him running
by the seashore at about 5:00 o'clock in the morning of October

6
5, 1965 because at that time he was still asleep at home. The
accused also admitted knowing witness, Jesusa Birondo but
alleged that she could not have seen him coming out of the door
of the house of Ino Espina at about 5:00 o'clock in the morning of
October 5, 1965 because at that time he was still asleep at
home.  9
Defense witness JACINTO MENDEZ corroborated the accused
defense of alibi by testifying that in the evening of October 4,
1965, he slept in the house of Hermogenes Sabio, father of the
accused, because he and Hermogenes had planned to go fishing
the following morning. In the house he saw the accused and the
other children of Hermogenes. When he woke up at 5:00 o'clock
in the morning of the following day, October 5, he saw that the
accused and the other children were all in the house. He repaired
the nets after waking up, then went out to sea with Hermogenes
at about 7:00 o'clock and came back at past 8:00 in the
morning.  10
In a Decision dated April 29, 1966, the trial Court found the
accused guilty of the crime of Robbery with Homicide attend by
the aggravating circumstances of disregard of respect due to the
victim, an octogenarian and recidivism, without any mitigating
circumstance, and sentenced him to death; to indemnify the heirs
of the deceased in the amount of P6,000.00; and to pay the
costs. The trial Court, however, recommended that in view of the
youthful age of the accused, the death penalty be commuted to
life imprisonment. 
In this appeal, the defense has made the following:  your arrival from the seashore?
Assignment of Errors  lying on the ground, and the merchandise
I. The lower Court erred in concluding that the
felony of Robbery with Homicide, instead of only
Homicide, had been established by the evidence; 
7
II. The lower Court erred in admitting Exhibit "A" of
the prosecution as an Antemortem declaration of
the victim; 
III. The lower Court erred in giving credence to the
testimony of Jesusa BIRONDO witness for the
prosecution; 
IV. The lower Court erred in finding that the
defendant- appellant was the perpetrator of the
crime. 11
1. We find merit in the contention that only the crime of Homicide
had been committed. The evidence indicative of robbery
consisted merely of the testimony of witness Camilo Semilla who
declared as follows: 
Q. How far was Rodulfo Sabio when he
passed by you running that moment? 
A. About six meters from me. 
Q. Did you notice while he passed by you
running, if he was holding anything? 
A. Yes, he had his hands inside his shirt. 
xxx xxx xxx 
Q. What did you notice inside the house upon
 
A. I saw that the ("barro") was already empty,
items were in disorder. 
Q. Do you know what things were placed in
that thing or tin can which you call barro 
A. It contained the cash sales. 
 Q. That "barro" which you mentioned, where Q. Could we say that the answer of the
was it before you left the house to go to the deceased Catalino Espina was outright after
shore that dawn?  the question? 

A. Beside the bed of lno  A. Yes, sir. 

Q. You said that tin can or 'barro' where the Q. Even with the second question, is that
cash sales were kept was beside the bed, do correct? 
you know more or less the amount placed
therein? 
A. Yes, sir. 

A. About P8.00. 
Q. Will you please let us know the third
question?
Q. How do you know that tin can had P8.00
inside? 
A. I asked him how much money he lost, and
he was not able to answer that question. 
A. Because the previous night we counted
the money. 
Q. Do you know why he did not answer that
question? 
Q. The P8.00 was the sales for how many
days? 
A. I think he did not answer that because
when he was hacked he had not yet given
A. That was the sales for Sunday and money to Papu. 
Monday. 12
xxx xxx xxx 
and that of Patrolman Fuentes, to wit: 
Q. You stated in the direct examination that
Q. When you were inside the house of the things in the house of the deceased
Catalino Espina, what else did you find in the Catalino Espina were in disarray, is that
course of your investigation?  correct 

A. I saw that the things of Catalino Espina A. Yes, sir. 

and the stands where the items for sale were
displayed were all in disarray. 
Q. Will you please state before the Honorable
Court the things that were disarrayed when
xxx xxx xxx  you went up the house of the deceased? 

Q. What other conversation did you have with A. The canned sardines were disarrayed,
Catalino Espina after that first question?  others had dropped to the ground; the barro
was already opened, and other things in the
store were in topsy-turvy state. 13
A. I asked him why Papu hacked him, and
the victim answered that Papu demanded
money from him. 

8
Plainly, the evidence supportive of the charge of robbery is at
best circumstantial and does not establish beyond reasonable
doubt that the accused had carried away personal- ty belonging
to the offended party. There was no eyewitness to the alleged
robbery, nor was any part of the alleged missing object
recovered. The consummation of the robbery cannot be inferred
nor presumed from the circumstance that the accused was seen
running "with his hands inside his shirt", or that the "barrio",
alleged to have contained cash amounting to about P8.00, was
seen on the floor, open and empty, or that the things and
merchandise inside the house were in disarray People vs. Labita
et al., [99 Phil. 1068, unreported case]). A conviction for Robbery
with Homicide requires that the robbery itself be proven as
conclusively as any other essential element of a crime (People
vs. Pacala, 58 SCRA 370 [1974]), it not being enough to infer
said robbery from mere suspicion and presumption (U.S. vs.
Alasaas 40 Phil. 878, 881).  in existence in the morning of October 5, 1965, as alleged by
Where there was no eyewitness to the alleged
robbery, and the evidence merely shows that after
the killing some of the things inside the house
where the killing took place, were missing, it
cannot be presumed that the accused killers
committed robbery. It is necessary to prove intent
to rob. This necessarily includes evidence to the
effect that the accused carried away the effects or
personalty of the offend- ed party. In the absence
of evidence that the accused carried away the
missing objects, they cannot be convicted of
robbery.   (Emphasis supplied) 
14
Nor can the dying declaration of the victim which,
in part, reads:  thereafter. It is the belief in impending death and not the rapid
Q. Who slashed you and robbed
you?  grandnephew Camilo Semilla to fetch the police, does not
9
A. Rodulfo Sabio (Papu) the son of
Menez from Lo-ok. 
be admitted to establish the fact of robbery. The admission of
dying declarations has always been strictly limited to criminal
prosecutions for homicide or murder   as evidence of the cause
15
and surrounding circumstances of death.  16
2. Next, the defense questions the admissibility of Exhibit "A" of
the prosecution as an antemortem statement arguing that there is
no evidence showing that when the declaration was uttered the
declarant was under a consciousness of an impending death;
that, in fact, the victim had hopes of recovery or his first word to
Camilo Semilla was for the latter to fetch the police. Defense
counsel argues further that there are doubts as to when said
Exhibit "A" was thumb-marked because, although it was already
Patrolman Fuentes, the accused was never confronted with the
document when he was taken in to custody by the police for the
first time from the morning of October 5 to October 6, 1965,
thereby implying that the document did not yet exist at that time. 
The arguments advanced are unavailing. The seriousness of the
injury on the victim's forehead which had affected the brain and
was profusely bleeding; the victim's inability to speak until his
head was raised; the spontaneous answer of the victim that "only
Papu Sabio is responsible for my death"; and his subsequent
demise from the direct effects of the wound on his forehead,
strengthen the conclusion that the victim must have known that
his end was inevitable. That death did not ensue till three days
after the declaration was made will not alter its probative force
since it is not indispensable that a declarant expires immediately
succession of death, in point of fact, that renders the dying
declaration admissible.   Further, the fact that the victim told his
17
negative the victim's feeling of hopelessness of recovery but
rather emphasizes the realization that he had so little time to
disclose his assailant to the authorities. The mere failure of the
police to confront the accused cused with the antemortem
declaration the first time the latter was arrested and incarcerated
from October 5 to October 6, 1965, neither militates against the
fact of its execution considering that it was evidence that the
police was under no compulsion to disclose.  testimony. Further, the, discrepancy as to the exact date when
3. The credibility of witness Jesusa Birondo is also assail ed by
the defense alleging firstly, that it is unbelievable that she could
have really Identified the accused as the person who came out of
the victim's house considering that the distance from her window
to that house was 17 meters, and at 5:00 a.m. on October 5,
1965, it was still dark and raining secondly, there is a glaring
divergence between her testimony at the trial and her statement
at the preliminary investigation, which statement was suppressed
and not made known to the trial Court; thirdly, said witness was
uncertain as to when she actually brought to the attention of the
authorities the matter of her having seen the accused; and finally,
the defense asks if it were true that the accused had been
Identified by said witness to the Chief of Police even before the
accused was taken into custody, why was not the accused
confronted with such fact?  or must have prejudged it even before the trial ended. That
For one who has known the accused since the latter's infancy and
who is very familiar with the accused's appearance because she
sees him almost everyday passing by her house or at the
seashore where the accused has his house, it is not incredible
that Jesusa Birondo recognized the accused, at side view, even,
at a distance of 17 meters (which was the trial Court's estimate of
the distance between Catalino Espina's house and that of Jesusa
Birondo as described by the accused) at 5:00 o'clock in the
morning and even if it were raining. Besides, Jesusa's description
of the clothes that the accused was wearing was corroborated by
Camilo Semilla, who also saw the accused that same morning.
The alleged divergence between Jesusa's statement at the
preliminary investigation and her testimony at the trial neither
merits serious consideration since an affidavit, "being taken ex
parte is almost always incomplete and often
10
inaccurate."   Besides, the discrepancies pointed out by the
18
defense, to wit: whether or not Jesusa saw what the accused did
after leaving the house of the victim and whether or not she went
down from her house after the incident, refer to minor details or
collateral matters which do not destroy the effectiveness of her
the witness actually disclosed to the authorities her having seen
the accused on the morning of the incident, is also a minor detail
which does not detract from the reliability of her Identification of
the accused. Moreover, the defense has not shown any ulterior
motive on the part of witness Jesusa Birondo that would make
her implicate and testify falsely against the accused, who was a
neighbor and an acquaintance. 
4. In the fourth and last assignment of error, the defense decries
the speed with which the trial Court decided the case, alleging
that the Decision was prepared and signed on April 29, 1966, or
one day after the close of trial on April 28, 1966, and was read to
the accused on April 30, 1966, without benefit of a transcript of
stenographic notes nor memoranda of the parties, so that the trial
Court could not have seriously considered the merits of the case
contention is belied, however, by the detailed findings of facts in
the Decision of the trial Court duly supported by the transcript of
stenographic notes now on record. 
Finally, the defense contends that the guilt of the accused has not
been established beyond reasonable doubt. The alibi put up by
the accused, however, crumbles under the positive Identification
by witnesses Jesusa Birondo and Camilo Semilla and the dying
declaration of the victim, aside from the fact that because of the
proximity of the house of the accused to that of the victim, it was
not impossible for the accused to have been at the scene of the
crime. 
In summation the accused is guilty only of Homicide, attended by
the aggravating circumstances of disregard of respect due the
offended party on account of his age, and dwelling Recidivism is
not to be considered because of our finding that the crime of
Robbery has not been conclusively established.
43. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
The penalty imposable for the crime of Homicide, attended by vs.REY SALISON, JR.,* TIRSO ANDIENTE, RUFINO
aggravating with no mitigating circumstances, is reclusion DIGNARAN and LEONILO FEDILES, accused. REY SALISON,
temporal in its maximum period or seventeen (17) years, four (4) JR., accused-appellant.
months and one (1) day to twenty (20) years.  19

Accused-appellant Rey Salison, Jr., alias "Loloy," appeals from a

WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", judgment in Criminal Case No. 21805-91 of the Regional Trial
guilty of the crime of Homicide and hereby sentence him to an Court of Davao City, Branch 16, which imposed upon him the
indeterminate penalty of twelve (12) years of prision mayor as penalty of relusion perpetua for the murder of one Rolando
minimum, to twenty (20) years of reclusion temporal as Valmoria.
maximum; to indemnify the heirs of the deceased, Catalino
Espina in the amount of P12,000.00; and to pay the costs.  The information filed against appellant and the co-accused Tirso
Andiente, alias "Sano"; Rufino Dignaran, alias "Jongjong"; and
SO ORDERED. Leonilo Fediles, alias "Ondoy," alleges:

That on November 30, 1990 in the City of Davao,

Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, confederating and
mutually helping one another, with abuse of superior
strength and with intent to kill, willfully, unlawfully and
feloniously mauled and pummeled with hard wood one
Rolando Valmoria. Serious and fatal injuries were inflicted
which subsequently caused the death of Rolando
Valmoria on December 4, 1990. 1 

Upon arraignment, appellant Rey Salison, Jr., assisted by

counsel de officio, entered a plea of "not guilty." Trial then
2 

proceeded only against him, because his three other co-accused

were and, still are, at large. On November 26, 1993, the trial court
rendered a decision with the following decretal portion:

WHEREFORE, finding the accused Rey Salison guilty

beyond reasonable doubt of the crime of MURDER
punishable under Article 248 of the Revised Penal Code,
with no modifying circumstance present, the Court has no

11
 other alternative but to impose the proper penalty of the three co-accused returned and started to maul Valmoria
"reclusion perpetua", the same being the medium period again, with Salison rejoining the three in assaulting the victim.  10 

within the range of the penalty imposable and to pay the

cost(s); to indemnify the offended party (in) the amount of
P50,000.00 as compensatory damages and P7,270.70 as
actual damages.  (Corrections in parentheses ours.)
3 
In the present appeal, herein appellant contends that the trial
court erred (1) in finding that there was proof beyond reasonable
doubt that the accused conspired with his co-accused in killing
the victim, (2) in not holding that accused is only responsible for
the injuries that he actually inflicted on the victim, and (3) in
admitting in evidence the alleged "dying declaration" of the victim,
as well as the "agreement" between the parents of the accused
and the victim. 4 
When Valmoria fought back, accused Salison, Fediles and
Andiente picked up pieces of wood and started to hit Valmoria at
the back on his nape, and on the rear part of his head, Valmoria
fell to the ground and, upon finding a chance to do so, he stood
up and ran towards his house which was a few meters away. The
assailants followed Valmoria but failed to further hit the victim
because Valmoria was able to hide inside his house. All of the
accused shouted for Valmoria to come out but the latter refused,
causing his four assailants to hit the walls and windows of the
Valmoria residence. During this time, the victim remained seated
inside the house. Shortly thereafter, Valmoria started to complain
of dizziness and pain in his head which was bleeding at that
time. 
11 

During the trial, the prosecution presented seven witnesses, a

picture of the pieces of wood used by the accused in killing the
5 
Consequently, at the request of Valmoria, his parents
victim, receipts of expenses incurred in the hospital for the accompanied him to the house of witness Patricia Alcoseba,
treatment of said victim, a written declaration of the victim after
6 
the purok leader. The victim asked Alcoseba to write down his
the incident, and a written agreement between the parents of
7 
declaration regarding the incident explaining that if he should die
appellant and the victim. 8 
and no witness would testify, his written declaration could be
utilized as evidence.
The evidence of record reveals that at around 8:00 o'clock in the
evening of November 30, 1990, witness Maria Magdalena Ayola At the trial of the case, Alcoseba presented the written and signed
saw appellant Salison approach the victim, Rolando Valmoria, declaration of Valmoria and she affirmed what was written in the
who was then watching television in a store at Cory Village, declaration, testifying as follows:
Agdao, Davao City. Salison placed his arm around Valmoria's
shoulder and brought him behind a neighbor's house where there PROSECUTOR DAYANGHIRANG III:
was a mango tree. There, appellant Salison boxed Valmoria in
the abdomen. 9  Q       Mrs. Alcose(b)a, on November 30, 1990, where were you?

A       I was in our house.

During the fistfight between Salison and Valmoria, the three other
accused Andiente, Dignaran and Fediles suddenly appeared and
Q       Where?
joined the fight and simultaneously attacked Valmoria. It was then
when witness Emilia Fernandez approached them that the three
A       At Gory Village.
co-accused disappeared, leaving Salison and Valmoria behind.
Fernandez was able to separate Salison from Valmoria. However,

12
 xxx       xxx       xxx
Q       After you heard that there was trouble in Cory Village, what happened
next, if any?
A       I noticed that the mother and father of Rolando Valmoria helped
Rolando Valmoria in walking towards my house.
Q       Did he tell you the reason why he requested you to make a
declaration in writing?
A       He told me that if anybody will testify regarding my death this
declaration of mine could be utilized as evidence.
xxx       xxx       xxx

Q       When they arrived (at) your house, what happened next? Q       Showing to you this statement, what a relation is this one (sic) to the
one you said which is the statement of the victim?
A       When they arrived (at) the house, the father requested that his son be
allowed to sit on our chair. A       Yes, this is the one.

Q       And what happened next after that? xxx       xxx       xxx

A       At that time Rolando Valmoria was sitting on the chair and he was so
weak and his neck and head slumped on the chair and the Valmorias
requested me that he has something to say and requested it to be written
and he stuttered in talking.
Q       There is a printed name . . . a signature over the printed name
Rolando Valmoria, "ang guibunalan/pasyente'', whose signature is this?
A       That is the signature of Rolando Valmoria.

Q       What did you do after the victim requested you?

COURT:

A       I obeyed. I obeyed the request and I got a ballpen and paper.

Q       When the victim signed that document, was he sitting?

Q       Then what happened next?

A       Yes, sir.

A       He related to me as to who started the trouble as to who struck him

Q       After the victim signed that document what happened next?
first, the second and the third.

A       They left and they went to the detachment.

Q       Now Mrs. Alcose(b)a, while the victim was narrating to you, what did
you observe about his condition?
xxx       xxx       xxx
A       I observed that he was so weak and he was in pain and I believed at
that time he was dying. Q       What happened to this piece of paper after the victim signed this?

Q       Did the victim utter the words to that effect that he was dying? A       I gave it to the mother.

A       Yes, sir. He told me by saying "I believe that I will die". Q       So you did not keep that piece of paper?

Q       What else? A       No, sir. I gave it to them so they will be able to use it.

A       Because he said that he felt a terrible pain on his head.

13
 Q       Before they left your house you gave that piece of paper to the
mother?
A       At that time I did not give that declaration first to the mother because
they were attending to their son.
Q       When did you give that document to the mother?
A       When Rolando Valmoria died.
xxx       xxx       xxx
Q       At the time you were taking this statement, from the victim did he tell
you the persons who were responsible for his injuries?
A       Yes, sir.
Q       Who?
A       Rufino Dignaran, Jr. alias Jongjong and the second is Loloy Salison
and the third one is name(d) Tirso and the fourth, I cannot remember the
name of the fourth person who hit the victim . . . yes, now I remember, it's
Leonilo Fideles.
Q       You wrote that statement (o)n a piece of paper?
A       Yes, sir. 12 (Corrections and emphasis supplied.)
After making that declaration in the house of witness Alcoseba,
Valmoria and his parents proceeded to the hospital where he was
X-rayed and treated for his head injuries. Subsequently, the
victim was allowed to go home. However, at 4:00 o'clock the
following morning, he started to convulse and was rushed to the
hospital. After three days there, Valmoria died.  13 
The prosecution likewise presented Dr. Edmundo Visitacion, Jr.
who had conducted the necropsy which established the cause of
death of Valmoria indicated in the post mortem certificate. He
explained that the head injury sustained by the victim caused by a
14
blunt external trauma probably made by a solid object and this
trauma caused the subdular hemorrhage.  14 
On December 12, 1990, the parents of the victim and those of the
accused Salison and Dignaran entered into a written agreement
for the refund of hospital expenses of Valmoria. However, no
reinbursement was actually made.
On the other hand, the lone defense witness was appellant
Salison himself who merely denied having killed the victim. He
testified that on that day, together with his friends Andiente,
Dignaran, Fideles and a certain Andy, he was visiting his
girlfriend, a certain Neneng Edpalina, when he heard Valmoria
and Andiente shouting at each other. He tried to pacify the two
but the victim told him not to interfere because he had nothing to
do with them. Then he saw Valmoria, Andiente, Dignaran, Fideles
and a certain Andy engaged in a fistfight. He was trying to stop
the group from fighting when witness Fernandez came and told
him not to interfere.
He then left and while he was on his way home, he heard
somebody shout "agay," so he went back and saw Andiente
holding a piece of wood while Valmoria was running towards his
house. He had just grabbed the piece of wood from Andiente
when two CAFGU's arrived and arrested him, Andiente, Dignaran
and Fideles. All of them were subsequently released after the
investigation. 
15 
The errors imputed to the trial court may be consolidated and
narrowed down to the question of credibility of the prosecution
witnesses, the existence of conspiracy in the commission of the
crime, and the evidentiary weight of the dying declaration, as well
as of the written agreement of the parents of the victim and the
accused.
In the instant case, the lower court held that:
 The testimony of the prosecution's witnesses were clear,
strong and convincing to deserve full faith and credence.
As against the pure denial of the accused of his direct
participation as a conspirator, the positive, clear and
straightforward declaration of the prosecution's witnesses,
must prevail. No motive or reason has been shown, why
they would falsely impute to the accused the commission
of such a grave crime. The accused Rey Salison has no
quarrel or bickering with the prosecution's witnesses. In
fact, two of the prosecution's witnesses are friends of the
mother of Rey Salison. These prosecution's witnesses
declared that they saw (that) the accused Rey Salison
together with the other accused participated in boxing and
mauling Rolando Valmoria with pieces of wood.  16 
We agree with the findings of the trial court giving full faith and
credit to the witnesses for the People. The uncorroborated
testimony of appellant can not prevail over the positive
declaration of the prosecution's witnesses. In fact, there were
three eyewitnesses, with no ill motives whatsoever, who testified
against appellant and confirmed Salison's direct participation in
the commission of the crime.
The defense did not present any evidence to support the denials
of appellant. The putative girlfriend of Salison, who was allegedly
with him on that day, was not presented to confirm that fact and
thereby prove that he did not participate in the fight between his
co-accused Andiente and the victim. His testimony pinpointing
Andiente as the killer was only a convenient way to avoid liability
since Andiente remained at large and could not refute Salison's
testimony imputing the crime to him.
Moreover, denial is a self-serving negative evidence that can not
be given greater weight than the declaration of credible witnesses
who testified on affirmative matters.  Definitely, therefore, the
17 
case of the Government has outweighed and overwhelmed the
evidential ramparts of the defense.
15
Appellant's assertion that conspiracy has not been established is
belied by the eyewitness accounts submitted by the prosecution.
The manner by which the killing was executed clearly indicated a
confederacy of purpose and concerted action on the part of the
accused. Prosecution witness Magdalena Ayola, who saw the
entire incident, testified on this point, thus:
Q       During that time were they alone? The two of them?
COURT:
A       When Salison brought Valmoria under the mango tree, they were only
2 but later, alias Sano, Fideles and alias Ondoy and alias Jong-jong boxed
Valmoria.
xxx       xxx       xxx
PROSECUTOR MANDALUPE:
Q       In other words aside from accused Salison alias Loloy who first boxed
Rolando Valmoria, other three persons joined Salison and also boxed
Rolando Valmoria?
A       Yes, sir.
xxx       xxx       xxx
COURT:
Q       Did you see the 3 come from the bushes?
A       Yes, sir.
Q       Where were you during the time when these three appeared from the
bushes?
A       I was nearby because we were watching them.
Q       Were you alone watching them or you had a companion?
A       I had some neighbors with me.
 xxx       xxx       xxx
PROSECUTOR MANDALUPE:
Q       After alias Sano, alias Jong-jong and alias Ondoy joined Salison in
boxing Rolando Valmoria, what else did he do against the person of
Rolando Valmoria?
A       Valmoria fought back and there was exchange of fist(icuffs) and Loloy
Salison, alias Ondoy and alias Sano picked up some wooden pieces of
wood (sic).
Q       After these three persons you mentioned picked up wood, what did
they do after picking up the wood?
A       They struck Valmoria with the piece of wood.
xxx       xxx       xxx
Q       You said that you saw these 4 persons struck Rolando Valmoria
many times while still under the mango tree. Can you tell the Honorable
Court what part of the body of Rolando Valmoria was hit by the striking of
wood by the 4 accused, if you can recall?
A       He was hit at his back and at the back of his head. 18  accompanied with a translation in English or Pilipino.
xxx       xxx       xxx
From the aforesaid testimony, these simultaneous attacks on the
victim proved the common intent of the accused to inflict fatal
blows upon the victim.
Direct proof is not essential to prove conspiracy.  A conspiracy 19 
may be inferred without need of showing that the parties actually
came together and agreed in express terms to enter into and
pursue a common design.  For collective responsibility among
20 
the accused to be established, it is sufficient that at the time of
the aggression all of them acted in concert each doing his part to
fulfill their common purpose to kill the victim.  21 
16
Even if there is no direct evidence showing that all of the accused
had a prior agreement on how to kill Valmoria, the doctrine is well
settled that conspiracy need not be proved by direct evidence of
prior agreement to commit the crime, Very seldom would such
prior agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements
in writing.
22 
It is equally a well-accepted corollary rule that where a conspiracy
has been established, evidence as to who among the accused
rendered the fatal blow is not necessary. All the conspirators are
liable as co-principals regardless of the intent and the character
of their participation, because the act of one is the act of all. 23 
What further strengthens the case of the prosecution was the
declaration of Valmoria, made and signed by him right after the
incident, as to who were responsible for the injuries he sustained.
Appellant, however, maintains that said written statement, which
was reduced into writing by witness Patricia Alcoseba and
purporting to be a dying declaration, is inadmissible as evidence
since it was in the Cebuano regional language and was not
However, as correctly observed by the Solicitor General:
The records do not disclose that the defense offered any
objection to the admission of the declaration. Thus, the
defense waived whatever infirmity the document had at
the time of its submission as evidence. The declaration
can be translated into English or Pilipino as it is already
admitted in evidence and forms part of the record.  24 
Also, while such statement was given, as in the nature of things
they are generally in oral form, they are not thereby rendered
inadmissible as they may even be communicated by means of
signs. If the declarations have thereafter been reduced to writing
and signed by the declarant, the writing is generally held to be the
best evidence, and it must be produced.  25 
More than once, this Court has taken into consideration
documents written in a Philippine dialect, unaccompanied by the
required translation but which had been admitted in evidence
without objection by the accused. In those instances, the Court
26 
merely ordered official translations to be made. It is true that
Section 33, Rule 132 of the revised Rules of Court now prohibits
the admission of such document in an unofficial language but we
believe that in the interest of justice, such injunction should not be
taken literally here, especially since no objection thereto was
interposed by appellant, aside from the fact that appellant, the
concerned parties and the judicial authorities or personnel
concerned appeared to be familiar with or knowledgeable of
Cebuano in which the document was written. There was,
therefore, no prejudice caused to appellant and no reversible
error was committed by that lapse of the trial court.
Also, the written declaration was duly presented during the trial
and the person who reduced the victim's declaration into writing
was thoroughly questioned by the court and the prosecutor, and
cross-examined by the defense counsel. The witness was able to
explain and discuss what was written in the declaration and how
she came to prepare the same. Significantly, everything written in
that declaration of the victim was confirmed by the Government's
eyewitnesses. Appellant's argument regarding the inadmissibility
of the declaration on a mere technicality would mean the loss of a
vital piece of evidence that could yield the true facts and give
retributive justice in the murder of Valmoria.
Appellant likewise argues that the declaration made by the victim
before the purok leader can not be considered as a dying
declaration because it was not made by the deceased "under the
consciousness of an impending death." As earlier narrated, at the
time the deceased made the declaration he was in great pain. He
expressed a belief on his imminent death and the hope that his
declaration could be used as evidence regarding the
17
circumstances thereof. A person would not say so if he believes
he would recover and be able to testify against his assailants. At
all events, assuming that declaration is not admissible as a dying
declaration, it is still admissible as part of the res gestae,  since it
27 
was made shortly after the startling incident and, under the
circumstances, the victim had no opportunity to contrive.
We are in conformity with the verdict of the lower court finding
appellant guilty of murder since the killing was qualified by the
circumstance of the accused having taken advantage of their
superior strength. The victim was unarmed and defenseless at
the time when all of the accused mercilessly bludgeoned his back
and head with big pieces of wood. The number of assailants and
the nature of the weapons used against the hapless victim show
a notorious inequality of force between the latter and the
aggressors, assuring a superiority of strength advantageous to
Salison and his co-accused in the commission of the crime. The
accused purposely used excessive force out of proportion to the
means of defense available to the person attacked.  28 
Since no aggravating or mitigating circumstance was present in
the case at bar, the trial court correctly imposed the penalty
of reclusion perpetua, the same being the medium period in the
range of the imposable penalty.
PREMISES CONSIDERED, the assailed judgment of the court a
quo is hereby AFFIRMED in toto, with costs against accused-
appellant Rey Salison, Jr.
SO ORDERED.
 44. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 
vs.SONNY GATARIN y CABALLERO @ "JAY-R" and
EDUARDO QUISAYAS, Accused,EDUARDO
QUISAYAS, Accused-Appellant.

Appellant and accused Sonny Gatarin y Caballero were charged

in an Information  with Robbery with Homicide committed as
4

follows:

That on or about the 3rd day of November, 2004, at about 8:00

o’clock (sic) in the evening, at Barangay Poblacion, Municipality
of Mabini, Province of Batangas, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with a bladed weapon, conspiring and confederating
together, acting in common accord and mutually helping each
other, with intent to gain, without the knowledge and consent of
the owner thereof and with violence against or intimidation of
person, did then and there willfully, unlawfully and feloniously
take, rob, and carry away cash money amounting to Twenty
Thousand Pesos (₱20,000.00), Philippine Currency, belonging to
Januario Castillo y Masangcay alias "Ka Maning," to the damage
and prejudice of the latter in the aforementioned amount and that
on the occasion and by reason of said robbery, the said accused
with intent to kill and taking advantage of their superior strength,
did then and there willfully, unlawfully and feloniously attack,
assault and stab with the said weapon Januario Castillo y
Masangcay alias "Ka Maning," thereby inflicting upon the latter
the stab wounds to [the] anterior chest and right shoulder and
right axilla, which directly caused his death.

Contrary to law. 5

18
Appellant was arrested, while his co-accused remained at-large.
When arraigned, he pleaded "Not Guilty." Trial on the merits
thereafter ensued.
The prosecution presented the testimonies of the following
witnesses: (1) Maria Castillo, the victim’s wife; (2) Howel Umali
(Umali), who allegedly saw how the accused mauled the victim;
(3) SPO3 Gregorio G. Mendoza (SPO3 Mendoza) of the Mabini
Police Station, who saw the victim lying on the floor and the
accused running away from the crime scene, and testified on the
dying declaration of Januario; (4) Dr. Catalino Ike A. Rasa Jr. (Dr.
Rasa), who attended to the victim when he was brought to the
hospital; and (5) PO1 Rogelio Dizon Coronel (PO1 Coronel), who
saw the accused running fast near the crime scene and who,
likewise, testified on Januario’s ante mortem statement.
From the testimonies of the above-named witnesses, the
prosecution established the following facts:
On November 3, 2004, at 8 o’clock in the evening, Umali was
riding a bicycle on his way home when he saw Januario being
mauled by two persons opposite Dom’s Studio in Poblacion,
Mabini, Batangas. Upon seeing the incident, he stayed in front of
the church until such time that the accused ran away and were
chased by policemen who alighted from the police patrol vehicle.
On the same night, SPO3 Mendoza and PO1 Coronel were on
board their patrol vehicle performing their routine patrol duty
when they met two men, later identified as the accused, who
were running at a fast speed. When asked why they were
running, the accused did not answer prompting the policemen to
chase them. The policemen, however, were unsuccessful in
catching them and when it became evident that they could no
longer find them, they continued patrolling the area. There they
saw Januario lying on the street in front of Dom’s studio. As he
was severely injured, the policemen immediately boarded
Januario to the patrol vehicle and brought him to the Zigzag
Hospital. While inside the vehicle, SPO3 Mendoza asked
19
Januario who hurt him. He answered that it was "Jay-R and his
uncle" who stabbed him. The uncle turned out to be the appellant
herein, while Jay-R is his co-accused who remains at-large.7
At the Zigzag Hospital, Januario was attended to by Dr. Rasa
who found him in critical condition. Three fatal wounds caused by
a bladed weapon were found in Januario’s body which eventually
caused his death.8
Maria Castillo, for her part, testified on how she learned of what
happened to her husband, the victim herein, the amount allegedly
stolen from her husband, as well as on the expenses and loss
incurred by reason of Januario’s death. She, further, quantified
the sorrow and anxiety the family suffered by reason of such
death.9
In his defense, appellant denied the accusation against him. He
claimed that he is from the Province of Samar but has been
residing in Cupang, Muntinlupa City since 1987. He denied
knowing, much more residing in, Mabini, Batangas, as he only
heard about the province from his employer who happens to be a
resident therein. He claimed that he did not know Januario and
that he was, in fact, working in Muntinlupa City on the date and
time the crime was allegedly committed. 10
6
The prosecution’s rebuttal witness Mr. Bienvenido Caponpon,
however, belied appellant’s claim and insisted that appellant was
renting a house in Mabini, Batangas and that he was seen there
until the day the crime was committed.11
On June 20, 2008, the RTC rendered a Decision against the
appellant, the dispositive portion of which reads:
WHEREFORE, the People having proven the guilt of accused
Eduardo Quisayas beyond reasonable doubt, he is hereby
declared "GUILTY" of the offense as charged. Accordingly, he is
hereby sentenced to a prison term of Reclusion Perpetua.
Further, he is hereby ordered to pay herein offended party of the We find appellant guilty beyond reasonable doubt not of robbery
following: with homicide but of murder.

(a) civil indemnity in the amount of Php50,000.00
(b) actual damages in the amount of Php20,000.00, plus
Php35,310.00 (funeral and hospital expenses), and
(c) moral damages in the amount of Php100,000.00
The trial court’s factual findings, including its assessment of the
credibility of the witnesses, the probative weight of their
testimonies, and the conclusions drawn from the factual findings
are accorded great respect and even conclusive effect. We,
nevertheless, fully scrutinize the records, since the penalty of
reclusion perpetua that the CA imposed on appellant demands no
less than this kind of careful and deliberate consideration. 19

SO ORDERED. 12

To sustain a conviction for robbery with homicide, the prosecution

must prove the following elements: (1) the taking of personal
The trial court gave credence to the testimony of Maria Castillo
property belonging to another; (2) with intent to gain; (3) with the
not only as to the fact of taking money from Januario but also the
use of violence or intimidation against a person; and (4) on the
amount taken.  The fact of death was, likewise, found by the
13

occasion or by reason of the robbery, the crime of homicide, as

court to have been adequately proven by the testimony of Dr.
used in the generic sense, was committed. 20

Rasa.  Though there was no evidence whether the unlawful

14

taking preceded the killing of Januario, the court held that there
was direct and intimate connection between the two acts. 15
First, in order to sustain a conviction for the crime of robbery with
homicide, it is necessary that the robbery itself be proven as
conclusively as any other essential element of the crime.  In order
21

As to the identity of the perpetrators, the court considered the

for the crime of robbery with homicide to exist, it must be
victim’s response to SPO3 Mendoza’s question as to who
established that a robbery has actually taken place and that, as a
committed the crime against him as part of the res gestae, which
consequence or on the occasion of robbery, a homicide be
is an exception to the hearsay rule.  As to appellant’s defense of
16

committed. 22

alibi, the court gave more weight to the prosecution’s rebuttal

evidence that indeed the former was an actual resident of Mabini,
Batangas. 17
On appeal, the CA affirmed the RTC decision. Contrary, however,
For there to be robbery, there must be taking of personal property
belonging to another, with intent to gain, by means of violence
against or intimidation of any person or by using force upon on
things.  Both the RTC and the CA concluded that robbery was
23

to the RTC’s conclusion, the appellate court considered

committed based on the testimonies of Maria Castillo, SPO3
Januario’s statement to SPO3 Mendoza, that the accused were
Mendoza, and PO1 Coronel. A closer look at the testimonies of
the ones who stabbed him and took his wallet, not only as part of
these witnesses, however, failed to convince us that indeed
res gestae but also as a dying declaration. 18

robbery took place.

Hence, the appeal before the Court.
Maria Castillo’s testimony was offered by the prosecution to prove
that her husband, the victim herein, was a victim of robbery with

20
homicide and that he is a businessman, and that she suffered A According to them my husband was wounded, many wounds and he was robbed,
sir.
damages by reason of such death. The pertinent portion of her
direct testimony is quoted below for a closer scrutiny:
Q Madam Witness, were you able to know who are the persons responsible for the
death of your husband?
ATTY. MASANGYA:
ATTY. EBORA:
Q The victim in this case Januario Castillo, how are you related to him?
We will object. That will be misleading.
WITNESS:
COURT:
A My husband, sir.
If she is aware.
Q On November 3, 2004, do you remember of any unusual incident that has
occurred?
ATTY. EBORA:

A Yes, sir.
We submit.

Q And what is that event?

COURT:

A At around 8:30 o’clock in the evening of November 3, 2004 while I was at home,
policemen arrived and informed me that my husband was wounded, sir. You ask her if she is aware who the perpetrators are.

Q Did these police officers inform you the location (sic) of where your husband was ATTY. MASANGYA:
located?
Q Madam Witness, were you informed who are the perpetrators of the crime on your
A According to the policemen, my husband was at Zigzag Hospital, sir. husband?

Q Did you go to Zigzag Hospital, Madam Witness? WITNESS:

A Yes, sir. A Not yet, sir. It was not told to me by the policemen because the policemen were in a
hurry.

Q What happened, Madam Witness, when you arrived at the hospital?

ATTY. MASANGYA:

A I was informed by the nurse there that my husband was already dead.
Q After the policemen went to your house, was there [any] person who informed you
who were the perpetrators of the crime?
ATTY. MASANGYA:
A Yes, sir. My niece.
Q Were you informed of the cause of the death of your husband?
Q And who is that niece of yours, Madam Witness?
WITNESS:

21
A Josephine Borbon, sir. Q If a copy will be shown to you, will you be able to identify the same?

Q Did Miss Borbon tell you about the identity of the perpetrators of the crime, Madam A Yes, sir.
Witness?
Q I am showing to you [a] certified copy of [the] Mayor’s permit previously marked as
A Yes, sir. Exhibit "H"?

Q And who are the persons did Miss Borbon mention? A This is it, sir.

A My former helper Sonny Gatarin and his uncle Eduardo Quisayas, sir. Q If you know, Madam Witness, how much is your husband earning in his sari-sari or
grocery business?
Q You were told that your husband was robbed, how much was taken from your
husband, Madam Witness? WITNESS:

A ₱20,000.00. A Yes, sir.

Q And can you tell, Madam Witness, why is your husband carrying that amount of ATTY. MASANGYA:
money at the time of his death?
Q How much is he earning at the time?
A Yes, sir.
A He earns ₱40,000.00.
WITNESS:
Q In a month or year?
A Those were the earnings for that day for he delivered merchandise and groceries,
sir.
A ₱40,000.00 a month, sir.

ATTY. MASANGYA:
Q How do you feel or confront the situation that your husband is already dead?

Q Do you know, Madam Witness, if your husband is engaged in any business?

A We felt deep sorrow together with my three (3) children, sir. (Witness is crying)

A Yes, sir.
x x x x24

Q And what is your proof in saying your husband is engaged in business?

A Our business was we delivered bottled goods and groceries, sir.
Q The business wherein your husband is engaged has an existing license with the
appropriate local government?
A Yes, sir.
From the above testimony, it can be inferred that Maria Castillo
obviously was not at the scene of the crime on that fateful night
as she was only informed that the incident took place and that
Januario was brought to the Zigzag Hospital. It, likewise, appears
that she had no personal knowledge that Januario was robbed.
While she claimed that ₱20,000.00 was illegally taken from him,
no evidence was presented to show that Januario indeed had that
amount at that time and that the same was in his possession. As

22
Maria Castillo claimed that the said amount was allegedly Alright, the Court will ask.
received from their clients in their grocery business, said fact
could have been proven by receipts or testimonies of said clients. Q When did you talk with the victim?
The prosecution’s failure to present such evidence creates doubt
A When we were inside the patrol car, your Honor.
as to the existence of the money.
Q What exactly did you ask from the victim?
The trial and appellate courts likewise relied on the testimony of
SPO3 Mendoza and PO1 Coronel on the statement of Januario A I asked him who stabbed him, your Honor.
after the commission of the crime. While both policemen testified
as to the dying declaration of Januario pertaining to the cause Q Did you tell the victim his condition?
and circumstances surrounding his death, only PO1 Coronel
testified during his direct examination that when asked who A No, your Honor.
stabbed him, Januario replied that it was "Jay-Ar and his uncle
who stabbed him and took his wallet."  In response to the
25
Q You just asked the victim who stabbed him?
Presiding Judge’s clarificatory question, however, PO1 Coronel
admitted that when he asked Januario who stabbed him, he A Yes, your Honor.
replied that it was Jay-Ar and his uncle. After which, no further
question was asked.  On the other hand, nowhere in SPO3
26 Q What was the answer of the victim?
Mendoza’s testimony did he talk about the alleged taking of
wallet. The pertinent portions of their testimonies read: A That he was stabbed by Jay-ar and his uncle, your Honor.

Direct Examination of PO1 Coronel: Q And no other question did you ask him?

xxxx A None, your Honor.

Q: What did you do next after boarding him inside your vehicle? x x x x28

A We brought him at the Zigzag Hospital and we asked him who stabbed him. Direct Testimony of SPO3 Mendoza:

Q What was his reply Mr. Witness? xxxx

A He told us that Jay-ar and his uncle stabbed him and took his wallet. Q And when you saw Januario Castillo lying on the street, what did you do?

x x x x27 A We lifted him and boarded him in our vehicle then we brought him to the hospital.

PO1 Coronel’s Answers to the questions propounded by the Presiding Judge: Q While you were travelling, were you able to talk to the victim Januario Castillo?

THE COURT: A Yes, sir.

23
Q What was your conversation all about?
A I asked Ka Maning Castillo as to who stabbed him and he answered Jay-R and his
uncle.
xxxx 29
It is, therefore, clear from the foregoing that the evidence
presented to prove the robbery aspect of the special complex
crime of robbery with homicide, does not show that robbery
actually took place. The prosecution did not convincingly
establish the corpus delicti of the crime of robbery.
Corpus delicti has been defined as the body or substance of the
crime and, in its primary sense, refers to the fact that a crime has
actually been committed. As applied to a particular offense, it
means the actual commission by someone of the particular crime
charged.  In this case, the element of taking, as well as the
30
existence of the money alleged to have been lost and stolen by
appellant, was not adequately established.  We find no sufficient
31
evidence to show either the amount of money stolen, or if any
amount was in fact stolen from Januario. Even if we consider
Januario’s dying declaration, the same pertains only to the
stabbing incident and not to the alleged robbery.
Moreover, assuming that robbery was indeed committed, the
prosecution must establish with certitude that the killing was a
mere incident to the robbery, the latter being the perpetrator’s
main purpose and objective. It is not enough to suppose that the
purpose of the author of the homicide was to rob; a mere
presumption of such fact is not sufficient.  Stated in a different
32
manner, a conviction requires certitude that the robbery is the
main purpose, and objective of the malefactor and the killing is
merely incidental to the robbery. The intent to rob must precede
the taking of human life but the killing may occur before, during or
after the robbery.  What is crucial for a conviction for the crime of
33
robbery with homicide is for the prosecution to firmly establish the
offender’s intent to take personal property before the killing,
24
regardless of the time when the homicide is actually carried
out.  In this case, there was no showing of the appellant’s
34
intention, determined by their acts prior to, contemporaneous
with, and subsequent to the commission of the crime, to commit
robbery.  No shred of evidence is on record that could support
35
the conclusion that appellant’s primary motive was to rob
Januario and that he was able to accomplish it.  Mere speculation
36
and probabilities cannot substitute for proof required in
establishing the guilt of an accused beyond reasonable
doubt.  Where the evidence does not conclusively prove the
37
robbery, the killing of Januario would be classified either as a
simple homicide or murder, depending upon the absence or
presence of any qualifying circumstance, and not the crime of
robbery with homicide.  To establish the fact that appellant and
38
his co-accused killed the victim by stabbing him with a bladed
weapon, the prosecution presented Umali as an eyewitness to
the mauling incident. It was this same witness who identified the
perpetrators. The trial and appellate courts also relied on the
statement of Januario as to the circumstances of his death,
testified to by PO1 Coronel and SPO3 Mendoza as dying
declaration and as part of res gestae.
A dying declaration, although generally inadmissible as evidence
due to its hearsay character, may nonetheless be admitted when
the following requisites concur, namely: (a) the declaration
concerns the cause and the surrounding circumstances of the
declarant's death; (b) it is made when death appears to be
imminent and the declarant is under a consciousness of
impending death; (c) the declarant would have been competent to
testify had he or she survived; and (d) the dying declaration is
offered in a case in which the subject of inquiry involves the
declarant's death. 39
In the case at bar, it appears that not all the requisites of a dying
declaration are present. From the records, no questions relative
to the second requisite was propounded to Januario. It does not
appear that the declarant was under the consciousness of his
impending death when he made the statements. The rule is that,
in order to make a dying declaration admissible, a fixed belief in
inevitable and imminent death must be entered by the declarant.
It is the belief in impending death and not the rapid succession of
death in point of fact that renders a dying declaration admissible.
The test is whether the declarant has abandoned all hopes of
survival and looked on death as certainly impending.  Thus, the
40
utterances made by Januario could not be considered as a dying
declaration.
However, even if Januario’s utterances could not be appreciated
as a dying declaration, his statements may still be appreciated as
part of the res gestae. Res gestae refers to the circumstances,
facts, and declarations that grow out of the main fact and serve to
illustrate its character and are so spontaneous and
contemporaneous with the main fact as to exclude the idea of
deliberation and fabrication. The test of admissibility of evidence
as a part of the res gestae is, therefore, whether the act,
declaration, or exclamation, is so interwoven or connected with
the principal fact or event that it characterizes as to be regarded
as a part of the transaction itself, and also whether it clearly
negates any premeditation or purpose to manufacture testimony. 41
The requisites for admissibility of a declaration as part of the res
gestae concur herein. When Januario gave the identity of the
assailants to SPO3 Mendoza, he was referring to a startling
occurrence which is the stabbing by appellant and his co-
accused. At that time, Januario and the witness were in the
vehicle that would bring him to the hospital, and thus, had no time
to contrive his identification of the assailant. His utterance about
appellant and his co-accused having stabbed him, in answer to
the question of SPO3 Mendoza, was made in spontaneity and
only in reaction to the startling occurrence. Definitely, the
statement is relevant because it identified the accused as the
authors of the crime. Verily, the killing of Januario, perpetrated by
appellant, is adequately proven by the prosecution.
From the evidence presented, we find that as alleged in the
information, abuse of superior strength attended the commission
25
of the crime, and thus, qualifies the offense to murder. Abuse of
superior strength is considered whenever there is a notorious
inequality of forces between the victim and the aggressor,
assessing a superiority of strength notoriously advantageous for
the aggressor which the latter selected or took advantage of in
the commission of the crime. 42
It is clear from the records of the case that Januario was then
fifty-four (54) years old. Appellant, on the other hand, was then
forty (40) years old. Appellant committed the crime with his co-
accused, his nephew. Clearly, assailants are younger than the
victim. These two accused were seen by Umali as the persons
who mauled Januario. Moreover, assailants were armed with a
bladed weapon, while Januario was unarmed. This same bladed
weapon was used in repeatedly stabbing Januario, who no longer
showed any act of defense. Dr. Rasa, the medical doctor who
attended to Januario when he was brought to the hospital, also
testified as to the nature and extent of the injury sustained by
Januario. He clearly stated that Januario sustained three fatal
injuries which caused his death. The pertinent portion of Dr.
Rasa’s testimony reads:
ATTY. MASANGYA:
Q How many injuries were sustained by the victim, Mr. Witness?
A Three.
Q In what parts of the body was the victim injured?
A The victim sustained three injuries: one on the left side of the parasternal border the
heart (sic) and it penetrated, and then the second one was on the right side of the
chest near the shoulder and the third one was under the armpit also to the chest.
ATTY. MASANGYA:
Q Which of those injuries caused the death of the victim?
A All of them are fatal, because the one over the heart penetrated the heart and the
aorta. The one in the anterior chest near the right shoulder hit the blood vessels of the
armpit and the wound under the armpit apparently hit the lungs.
x x x x43
This same physician issued the Medical Certificate explaining the location of the stab
wounds as well as the cause of death of Januario, to wit:
Location of Stab Wounds:
1. Stab wound penetrating 2nd inter-costal space left para-sternal border, 6"
deep penetrating the heart chambers and aorta
2. Stab wound over the right anterior deltoid muscle, penetrating
3" into the right axilla space; injuring the axilla blood vessels.
3. Stab wound over the right axilla, penetrating to the right chest cavity.
CAUSES OF DEATH
Immediate Cause: Hypovolemic Shock
Antecedent Cause: Multiple stab wounds to the anterior chest, right
axilla, and right axilla penetrating the chest cavity.
xxxx 44
From the testimony of the eyewitness and corroborated by the
medical certificate of Dr. Rasa, it can be inferred that indeed the
qualifying circumstance of abuse of superior strength attended
the commission of the crime. To be sure, with two assailants
younger than the victim, armed with a bladed weapon and
inflicting multiple mortal wounds on the victim, there is definitely
abuse of superior strength deliberately taken advantage of by
appellant and his co-accused in order to consummate the
offense.
26
Now on the penalty. Article 248 of the Revised Penal Code
provides:
ART. 248. Murder. – Any person who, not falling within the
provisions of article 246 shall kill another, shall be guilty of murder
and shall be punished by reclusion perpetua to death if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense or
of means or persons to insure or afford impunity.
xxxx 45
There being neither mitigating nor aggravating circumstances,
appellant shall be meted the penalty of reclusion perpetua.
Finally, the award of damages. In murder, the grant of civil
indemnity which has been fixed by jurisprudence at ₱50,000.00
requires no proof other than the fact of death as a result of the
crime and proof of the accused’s responsibility therefor. Moral
damages, on the other hand, which in this case is also
₱50,000.00 are awarded in view of the violent death of the
victim.  Moreover, exemplary damages in the amount of
46
₱30,000.00 should likewise be given, considering that the offense
was attended by an aggravating circumstance whether ordinary,
or qualifying as in this case. As duly proven by Maria Castillo,
actual damages representing the hospital and funeral expenses,
as evidenced by receipts in the amount of ₱35,300.00, be
awarded. Finally, in addition and in conformity with current policy,
we also impose on all the monetary awards for damages an
interest at the legal rate of six percent (6%) from date of finality of
this decision until full payment.47
WHEREFORE, premises considered, we MODIFY the Court of
Appeals Decision dated February 23, 2011 in CA-G.R. CR H.C.
No. 03593, affirming the Regional Trial Court Decision dated
June 20, 2008 in Criminal Case No. 13838, convicting appellant
Eduardo Quisayas of Robbery with Homicide. We find appellant
guilty beyond reasonable doubt of the crime of MURDER and is
sentenced to suffer the penalty of reclusion perpetua.
We, likewise, ORDER appellant TO PAY the heirs of the victim
Januario Castillo y Masangcay the following: (1) ₱35,300.00
actual damages; (2) ₱50,000.00 civil indemnity; (3) ₱50,000.00
moral damages; (4) ₱30,000.00 exemplary damages; plus (5) six
percent (6%) interest on all damages awarded from the date of
the finality of this decision until full payment.
SO ORDERED.
27
45. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 
vs.BERNABE P. PALANAS alias "ABE", Accused-Appellant.
The prosecution presents the following version of the facts:
At around 6:40 in the morning of March 26, 2006, SPO2 Borre
took his five (5)-month-old grandson outside his residence at
Block 14, Kenneth Street corner Eusebio Avenue, Pasig City.
PO3 Leopoldo Zapanta (PO3 Zapanta), who slept at SPO2
Borre’s residence, was watching television when four (4)
successive gunshots rang out. PO3 Zapanta looked through the
open door of SPO2 Borre’s house and saw two (2) men armed
with .38 caliber revolvers standing a meter away from SPO2
Borre. He saw Palanas deliver the fourth shot to SPO2 Borre, but
he could not identify the other shooter. Thereafter, the two (2)
assailants fled on a motorcycle.  PO3 Zapanta, together with
6
SPO2 Borre’s stepson Ramil Ranola (Ramil), brought SPO2
Borre to the Pasig City General Hospital. On the way to the
hospital, SPO2 Borre told Ramil and PO3 Zapanta that it was
"Abe," "Aspog," or "Abe Palanas" – referring to his neighbor,
Palanas – who shot him. This statement was repeated to his wife,
Resurreccion Borre (Resurreccion), who followed him at the
hospital. At around 11 o’clock in the morning of even date, SPO2
Borre died due to gunshot wounds on his head and trunk. 7
For his part, Palanas interposed the defense of denial and alibi.
He claimed that on March 25, 2006 he was in Parañaque City
attending to the needs of his sick father. The next day, he went to
a baptism in Tondo, Manila and stayed there from morning until 9
o’clock in the evening, after which he returned to his father in
Parañaque City. He maintained that he was not aware of the
death of SPO2 Borre until he was informed by a neighbor that
Resurreccion was accusing him of killing her husband. He also
denied any knowledge why Resurreccion would blame him for
SPO2 Borre’s death. 8
 The RTC Ruling
In a Decision  dated October 20, 2010, the RTC convicted
9 the heirs of SPO2 Borre to ₱75,000.00 as civil indemnity, and
Palanas of the crime of Murder and sentenced him to suffer the
penalty of reclusion perpetua, and ordered him to pay the heirs of
SPO2 Borre the amounts of: (a) ₱50,000.00 as civil indemnity; (b)
₱25,000.00 as exemplary damages; (c) ₱50,000.00 as moral
damages; and (d) ₱2,464,865.07  as actual damages.
10 11
The RTC found that the prosecution had established beyond
reasonable doubt that Palanas and his companion were the ones
who killed SPO2 Borre through the positive identification of the
eyewitnesses to the incident. Moreover, SPO2 Borre’s statements
that Palanas shot him constituted an ante mortem statement and
formed part of the res gestae, and, thus, admissible as evidence
against Palanas. It further opined that treachery attended SPO2
Borre’s killing as he had no inkling that the attack would take
place, and that he was in no position to mount any feasible
defense.  The RTC, however, did not appreciate evident
12
premeditation because of the absence of the following elements:
(a) the time when the offender determined to commit the crime;
(b) an act manifestly indicating that the accused clung to his
determination; and (c) a sufficient lapse of time between
determination and execution to allow himself time to reflect upon
the consequences of his act. 13
On the other hand, the RTC gave no credence to Palanas’s
defense of alibi. It observed that it was not physically impossible
for Palanas to be at the locus criminis as his own witness even
stated that the distance between Pasig City and Parañaque City
could be traversed in less than one (1) hour. 14
Dissatisfied, Palanas appealed his conviction to the CA. 15
The CA Ruling
28
In a Decision  dated January 16, 2014, the CA affirmed the
16
RTC’s ruling with modification increasing the amounts awarded to
₱30,000.00 as exemplary damages.
The CA found all the elements of the crime of Murder to be
present, giving probative weight to the dying declaration of SPO2
Borre that it was Palanas who shot him. It also found the
presence of treachery as SPO2 Borre was in no position to
defend himself when he was successively shot. 17
Aggrieved, Palanas filed the instant appeal. 18
The Issue Before the Court
The issue for the Court’s resolution is whether or not Palanas’s
conviction for the crime of Murder should be upheld.
The Court's Ruling
The appeal is bereft of merit.
Murder is defined and penalized under Article 248 of the RPC, as
amended by Republic Act No. (RA) 7659,  as follows:
19
Art. 248. Murder. — Any person who, not falling within the
provisions of Article 246, shall kill another, shall be guilty of
murder and shall be punished by reclusion perpetua to death if
committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the
aid of armed men, or employing means to weaken the defense, or
of means or persons to insure or afford impunity.
xxxx
Treachery is a well-established concept in criminal law. "There is
treachery when the offender commits any of the crimes against a
person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the
offended party might make."  There are two (2) conditions
20
therefore that must be met for treachery to be appreciated: (a) the
employment of means of execution that gives the person attacked
no opportunity to defend himself or to retaliate; and (b) the means
of execution was deliberately or consciously adopted. 21
The essence of treachery is that the attack comes without
warning in a swift, deliberate, and unexpected manner, granting
the victim no chance to resist or escape.  The attack must be
1avvphi1
sudden and unexpected rendering the victim unable and
unprepared to put up a defense.  With the foregoing in mind, the
22
Court agrees with the findings of the RTC and the CA that
Palanas killed SPO2 Borre, and that the qualifying circumstance
of treachery attended the same. The records show that SPO2
Borre was outside carrying his grandson when two (2) assailants
shot him. During the attack, SPO2 Borre had no opportunity to
raise any meaningful defense against his assailants; and
consequently, he suffered multiple gunshot wounds on his head
and trunk, causing his death.23
The CA is also correct in admitting SPO2 Borre’s statements on
his way to the hospital as evidence, both as a dying declaration
and as part of the res gestae.
For a dying declaration  to constitute an exception to the hearsay
24
evidence rule,  four (4) conditions must concur: (a) the
25
declaration must concern the cause and surrounding
circumstances of the declarant’s death; (b) that at the time the
declaration was made, the declarant is conscious of his
impending death; (c) the declarant was competent as a witness;
and (d) the declaration is offered in a criminal case for Homicide,
Murder, or Parricide where the declarant is the victim.  On the
26
other hand, a statement to be deemed to form part of the res
29
gestae,  and thus, constitute another exception to the rule on
27
hearsay evidence, requires the concurrence of the following
requisites: (a) the principal act, the res gestae, is a startling
occurrence; (b) the statements were made before the declarant
had time to contrive or devise; and (c) the statements must
concern the occurrence in question and its immediately attending
circumstances. 28
In the case at bar, SPO2 Borre’s statements constitute a dying
declaration, given that they pertained to the cause and
circumstances of his death and taking into consideration the
number and severity of his wounds, it may be reasonably
presumed that he uttered the same under a fixed belief that his
own death was already imminent.  This declaration is considered
29
evidence of the highest order and is entitled to utmost credence
since no person aware of his impending death would make a
careless and false accusation.  Verily, because the declaration
30
was made in extremity, when the party is at the point of death and
when every motive of falsehood is silenced and the mind is
induced by the most powerful considerations to speak the truth,
the law deems this as a situation so solemn and awful as creating
an obligation equal to that which is imposed by an oath
administered in court.31
In the same vein, SPO2 Borre’s statements may likewise be
deemed to form part of the res gestae. "Res gestae refers to the
circumstances, facts, and declarations that grow out of the main
fact and serve to illustrate its character and are so spontaneous
and contemporaneous with the main fact as to exclude the idea of
deliberation and fabrication. The test of admissibility of evidence
as a part of the res gestae is, therefore, whether the act,
declaration, or exclamation is so intimately interwoven or
connected with the principal fact or event that it characterizes as
to be regarded as a part of the transaction itself, and also whether
it clearly negates any premeditation or purpose to manufacture
testimony."  In this case, SPO2 Borre’s statements refer to a
32
startling occurrence, i.e., him being shot by Palanas and his
companion. While on his way to the hospital, SPO2 Borre had no
time to contrive the identification of his assailants. Hence, his sentenced to suffer the penalty of reclusion perpetua without
utterance was made in spontaneity and only in reaction to the eligibility for parole
startling occurrence. Definitely, such statement is relevant
because it identified Palanas as one of the authors of the crime. SO ORDERED.
Therefore, the killing of SPO2 Borre, perpetrated by Palanas, is
adequately proven by the prosecution. 33
46. PEOPLE OF THE PHILIPPINES, Appellee, v. REGGIE VILLARIEZ ALIAS
"TOTI," Appellant.
On the other hand, the Court does not find credence in Palanas’s
defense of alibi. It is axiomatic that alibi is an inherently weak
defense,  and may only be considered if the following
34

On 22 September 1995, Villariez, together with his two brothers,

circumstances are shown: (a) he was somewhere else when the
crime occurred; and (b) it would be physically impossible for him Amado Villariez (Amado) and Tomas Villariez (Tomas), was charged in
to be at the locus criminis at the time of the alleged crime.  In this
35 an Information for murder, defined and penalized under Article 2483of
case, the RTC correctly observed that aside from the admission the Revised Penal Code. The Information
that travel from Parañaque Cityto Pasig City only takes about one states:ChanRoblesvirtualLawlibrary
(1) hour, the incident occurred on a Sunday when traffic is not
usually heavy. Moreover, Palanas had access to a motorcycle That on July 3, 1995, at around 3:30 o'clock in the afternoon at the
that allowed him to travel faster on the date and time of the compound of the Catholic Cemetery in Brgy. Casanayan, Pilar, Capiz,
incident.  Under the circumstances, there is the possibility that
36
Philippines, and within the jurisdiction of this Honorable Court, the
Palanas could have been present at the locus criminis at the time above-named accused, all armed with guns of unknown caliber and
of the shooting. Accordingly, his defense of alibi must fall. with intent to kill, conspiring and confederating with one another, did
then and there willfully, unlawfully and without any warning or
Anent the proper penalty to be imposed upon Palanas, Section 3 provocation shot from behind one ENRIQUE OLIMBA, thereby inflicting
of RA 9346  provides that "[p]ersons convicted of offenses
37
upon the latter a fatal gunshot wound in the body causing the
punished with reclusion perpetua, or whose sentences will be instantaneous death of said Enrique Olimba.
reduced to reclusion perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4103, otherwise known as the The crime was committed with the qualifying aggravating
Indeterminate Sentence Law, as amended." Pursuant thereto,
circumstances of treachery and known premeditation.
Palanas should be sentenced to suffer the penalty of reclusion
perpetua, without eligibility for parole.
38

WHEREFORE, the appeal is DENIED. The Decision dated
January 16, 2014 of the Court of Appeals in CA-G.R. CR HC No.
04925 finding accused-appellant Bernabe P. Palanas alias "Abe",
GUILTY beyond reasonable doubt of the crime of Murder as
defined and punished under Article 248 of the Revised Penal
Code is hereby AFFIRMED WITH MODIFICATION, in that he is
That because of the death of said ENRIQUE OLIMBA, his heirs are
entitled to death indemnity of P50,000.00 plus other damages in
consonance with the provisions of the New Civil Code of the
Philippines.
CONTRARY TO LAW.4
On 20 July 1995, warrants of arrest were issued against the three

30
accused brothers - Villariez, Amado, and Tomas. Amado and Tomas
surrendered and posted bail. On 26 August 1995, Amado was shot
dead and the case against him was dismissed. On 17 November 1995,
Tomas was arraigned and pleaded not guilty.
On 29 January 1997, the prosecution filed a Motion to Dismiss Tomas
from the case. Perla Olimba (Perla), the wife of the victim Enrique
Olimba (Enrique), executed an Affidavit of Desistance because of the
insufficiency of evidence to prove Tomas' guilt beyond reasonable
doubt. On 30 January 1997, the motion was granted by the RTC.
On 6 October 1999, the RTC ordered the issuance of an alias warrant of
arrest against Villariez. On 14 February 2003, the alias warrant of arrest
was returned to the RTC after Villariez was arrested. On the same day,
Villariez was taken into custody by the provincial warden of the Capiz
Rehabilitation Center.
On 5 May 2003, Villariez was arraigned and pleaded not guilty.
On 20 August 2003, at the pre-trial conference, the following facts
were admitted by the parties: (1) the name and identity of Villariez; (2)
the name and identity of the victim, Enrique; (3) that on 3 July 1995, at
about 3:30 p.m., a shooting incident occurred in the premises of the
Catholic Cemetery of Barangay Casanayan, Pilar, Capiz, where the
victim was present and died as a result; (4) that Villariez knows Enrique
since they are second cousins; (5) that Villariez is a brother of co-
accused Amado and Tomas; and (6) that Villariez was arrested on 14
February 2003.
On 25 March 2004, Villariez posted a personal bail bond and was
released from custody.
During the trial, the prosecution presented the following witnesses: (1)
Dr. Florentino Bermejo (Dr. Bermejo), postmortem examiner; (2) Perla;
31
(3) Randy Olimba (Randy), son of the victim; (4) Ana Olimba (Ana),
daughter of the victim; and (5) Antonio Bacto, Chief of Police of Capiz.
Ana testified that on 3 July 1995, she, together with her family -parents
Enrique and Perla and sibling Randy, attended the burial of Perla's
uncle in the cemetery of Barangay Casanayan, Pilar, Capiz. At around
3:30 in the afternoon, while praying the novena before the burial, Ana,
who was on top of a tomb and about eight meters from her father,
heard a gun explode. When she turned to look at her father, she saw
him spinning. Ana then shouted to her mother that her father was shot.
Ana ran towards her father and saw Villariez waving a gun,
accompanied by his brothers Amado and Tomas. Ana held her father's
head with her dress drenched in blood. She asked her father the
identity of the person who shot him. At the brink of death and with a
voice she could hardly hear, her father uttered the name "Toti."
Thereafter, she ran towards the road and told her mother to bring her
father to the hospital. She also saw Villariez and his two brothers
pointing their guns to people who were scampering away. The three
then fled on a motorcycle.
Randy testified that he was two to three meters away from his father
prior to the shooting. He saw Villariez and the latter's two brothers
Amado and Tomas position themselves behind his father's back.
Thereafter, he saw Villariez, with a short firearm, shoot his father.
When the three started running away, he rose and followed them.
Randy saw Amado ride a motorcycle while Tomas and Villariez passed
by the rice fields. He then saw Villariez waving the short firearm he was
carrying to some tricycle drivers. Afterwards, Randy saw Villariez riding
on a motorcycle.
Perla testified that while attending the burial of her uncle, she heard an
explosion. She went out and saw Villariez and his two brothers run
away from the place where her husband was lying. Then she saw Ana
cradling the head of her husband who was lying on the ground. Randy
approached Perla and told her that Toti was the one who shot his
father. Perla went to the Barangay Captain to inform him that Villariez
shot her husband. Perla then returned to the cemetery. There, she
found her husband already dead. Thereafter, Perla, Ana and Randy
brought Enrique's body to their house and summoned Dr. Bermejo.
Dr. Bermejo, the Rural Health Physician of Pilar, Capiz, performed the
postmortem examination on Enrique's cadaver. Dr. Bermejo testified
that the victim's cause of death was severe hemorrhage, antecedent to
a gunshot wound with the entrance of the bullet at the back. He
further testified that both the victim and assailant were possibly
standing when the incident happened.
The defense, on the other hand, presented (1) Villariez; (2) Tomas; and
(3) Reynaldo Jalbuna (Jalbuna), Villariez's friend and co-worker.
Villariez testified that he was at the Casanayan Cemetery attending the
burial of his uncle at around 3:30 in the afternoon of 3 July 1995. He
was with Jalbuna, his friend for more than 10 years. His elder brother
Tomas was also present and was standing about 20-30 meters ahead of
them. Around 200 people attended the burial and while they were
praying, he heard a sudden outburst and saw a person fall down. The
person was later identified as Enrique, the husband of his second
cousin Perla. Everyone scurried away to different directions. Together
with Jalbuna, Villariez then proceeded to Balasan, Iloilo.
Jalbuna testified that he was Villariez's co-worker and at the time of the
incident they were employed by Vice Mayor Samson Vedro of Balasan,
Iloilo. Jalbuna corroborated Villariez's testimony and stated that he was
with Villariez in the afternoon of 3 July 1995 attending the funeral of
Villariez's relative. They saw Tomas at the funeral but Tomas did not
see them. When the shooting incident occurred, Jalbuna saw people
running away. They followed everyone else and left the cemetery. They
then headed back to work in Balasan, Iloilo.
Tomas testified that he, together with his brother Amado, attended the
burial of his uncle on 3 July 1995. He did not see his brother Villariez
32
during the burial. Tomas stated that he was about 10 meters away
when he saw the man who shot Enrique but he did not recognize the
lone gunman. He further said that Perla could not have seen the
shooting incident since her husband was way behind her and that their
two children, Randy and Ana, were not present during the burial.
In its Decision dated 22 August 2007, the RTC found Villariez guilty
beyond reasonable doubt of the crime of homicide. The RTC found that
the seething righteous indignation of the prosecution's witnesses
against Villariez could have arisen only from their unadulterated
knowledge of the identity of their kin's assailant. The RTC also gave
weight to the positive identification of Villariez by Randy and found no
reason to disregard the testimony of Ana on her father's dying
declaration that it was "Toti" who shot him. The RTC, however, found
that the prosecution failed to establish the existence of the qualifying
circumstances of treachery and taking advantage of strength. Thus, it
held Villariez liable for the crime of homicide, punishable by reclusion
temporal. The dispositive portion of the decision
states:ChanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Court finds the accused guilty
beyond reasonable doubt of the crime of homicide, and he is hereby
sentenced to suffer the indeterminate prison term of 6 years and 1 day
of Prision Mayor, as minimum, to 12 years and 1 day of Reclusion
Temporal, as maximum, and to pay the heirs of the victim of the
amount of P70,000.00 as civil indemnity, P100,000.00 as moral
damages and P50,000.00 as funeral and wake expenses, and pay the
costs.
SO ORDERED.5
On 20 September 2007, Villariez filed an appeal with the CA. Villariez
raised the following errors of the RTC:ChanRoblesvirtualLawlibrary
I

THE COURT A QUO GRAVELY ERRED IN DRAWING FACTUAL
CONCLUSIONS FROM THE NEBULOUS AND DOUBTFUL TESTIMONIES OF
PERLA OLIMBA, RANDY OLIMBA AND ANA OLIMBA, WIDOW, SON AND
DAUGHTER, RESPECTIVELY OF THE DECEASED, THAT IT WAS THE
ACCUSED-APPELLANT WHO SHOT THE LATTER;
II
THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE ALLEGED
STATEMENT OF THE DECEASED TO HER DAUGHTER, ANA OLIMBA,
AFTER THE SUBJECT SHOOTING INCIDENT AS A DYING DECLARATION;
AND
III
THE COURT A QUO GRAVELY ERRED IN NOT ACQUITTING THE
ACCUSED-APPELLANT FOR THE FAILURE OF THE PROSECUTION
WITNESSES TO IDENTIFY HIM BEYOND REASONABLE DOUBT AS THE
PERSON WHO SHOT TO DEATH THE DECEASED.6
The Ruling of the CA
In its Decision dated 20 November 2012, the CA affirmed with
modification the decision of the RTC. The CA found that Randy's
testimony leaves no doubt that Villariez committed the crime. Randy's
eyewitness account was amply supported by the postmortem
examination which revealed that the entrance wound, located at
Enrique's back, caused his father's death. The CA also stated that the
close relationship of the Olimbas' with Villariez, being Perla's second
cousin, assured the certainty of the identification of Enrique's killer.
The CA found the Olimbas' testimonies deserving of full faith and credit
absent any ill motive on their part to testify against Villariez. Further,
the positive identification of Randy was fully supported by the dying
declaration of his father pointing to Villariez as the person who shot
him. The CA also appreciated the qualifying circumstance of treachery
33
since the shooting was swift, sudden and unforeseen which placed
Villariez at a position which afforded him no risk arising from a defense
which the victim might have made.
The dispositive portion of the decision
states:ChanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the Appeal is DENIED. The Decision
dated August 22, 2007 of the Regional Trial Court (RTC), Branch 17,
Roxas City in Criminal Case No. C-4770, is hereby AFFIRMED with
MODIFICATION that the accused-appellant Reggie Villariez alias "Toti"
is hereby found guilty beyond reasonable doubt of "Murder" qualified
by treachery defined and penalized by Article 248 of the Revised Penal
Code and is hereby meted the penalty of "RECLUSION PERPETUA."
He is further ordered to pay the heirs of Enrique Olimba, Seventy Five
Thousand Pesos (P75,000.00) as civil indemnity, Seventy Five Thousand
Pesos (P75,000.00) as moral damages, Thirty Thousand [Pesos]
(P30,000.00) as exemplary damages, and Twenty Five Thousand Pesos
(P25,000.00) as temperate damages. Finally, interest on all these
damages assessed at the legal rate of 6% from date of finality of this
Decision until fully paid is imposed.
SO ORDERED.7
The Issues
Villariez now comes before the Court assailing the decisions of the RTC
and CA for (1) failure of the prosecution to amend the Information
charging that he committed the crime alone and not in conspiracy with
his conspirators-brothers; and (2) giving credence to the dying
declaration made by Enrique which should be held inadmissible.
The Ruling of the Court
The appeal lacks merit.

We agree with the RTC and CA in ruling that the prosecution fully
established Villariez's guilt for killing Enrique. Both the RTC and CA gave
full faith and credence to the testimonies of the prosecution witnesses.
Randy gave a frank and categorical eyewitness account that Villariez
was the one who shot his father. Randy's account was corroborated by
Dr. Bermejo's postmortem examination which revealed that the
victim's cause of death was a gunshot wound to the back. Also, no ill
motive was imputed to the prosecution witnesses to falsely accuse and
testify against Villariez. The assertion of the accused that the witnesses
were biased since they were related to the victim deserves scant
consideration. Mere relationship of a witness to the victim does not
impair the witness' credibility. On the contrary, a witness' relationship
to a victim of a crime would even make his or her testimony more
credible, as it would be unnatural for a relative who is interested in
vindicating the crime, to accuse somebody other than the real
culprit.8 Further, Villariez's defense of denial failed to cast doubt on the
positive identification made by the prosecution witnesses and this
defense, being inherently weak, cannot prevail over such positive
identification of the accused as the perpetrator of the crime.
Villariez insists that since the prosecution failed to amend the
Information charging that he committed the crime alone, and not in
conspiracy with his brothers, then the prosecution violated his
constitutional right to due process for not informing him of the true
nature, cause and circumstance of the commission of the crime for
which he was tried and convicted.
We disagree.
In the present case, the Information charged Villariez, together with his
brothers, of inflicting upon Enrique a fatal gunshot wound in the body
causing the latter's instantaneous death.
The commission of the specific acts charged against Villariez constitutes
the offense charged in the Information. The prosecution's failure to
34
establish conspiracy due to the death of a co-conspirator and the
dismissal of the case against another co-conspirator does not defeat
the conviction of the accused for the offense charged and proven
during the trial.
In US v. Vitug,9 the Information charged that the accused committed
the specific acts therein attributed to him, and that he committed those
acts in conspiracy with his co-accused. We ruled that the commission of
the specific acts charged against the accused constituted the offense
charged, and the failure to establish the conspiracy in no way
prevented conviction of the accused for the offense charged and
proven.
Villariez's allegation that the dying declaration made by the victim
should be held inadmissible deserves scant consideration. We agree
with the finding of the CA that all the requisites necessary to admit
Enrique's dying declaration to his own daughter Ana were all present.
The relevant portions state:ChanRoblesvirtualLawlibrary
Statements identifying the assailant, if uttered by a victim on the verge
of death, are entitled to the highest degree of credence and respect.
Persons aware of an impending death have been known to be
genuinely truthful in their words and extremely scrupulous in their
accusations. The dying declaration is given credence on the premise
that no one who knows of one's impending death will make a careless
and false accusation. Hence, not infrequently, pronouncements of guilt
have been allowed to rest solely on the dying declaration of the
deceased victim.
For a dying declaration to be admissible in evidence, the following
requisites must concur: (1) the dying declaration must concern the
cause and surrounding circumstances of the declarant's death; (2) at
the time of making his declaration, the declarant was under a
consciousness of impending death; (3) the declarant must have been
competent to testify as a witness; and (4) the declaration was offered
in a criminal case for homicide, murder or parricide in which the
declarant was the victim.
These requisites are all present in the case at bar.
First. Enrique's utterance pertains to the identity of the one who shot
him.
Second. Contrary to the allegation of accused-appellant, it was
established that the declarant Enrique, was under a consciousness of
his impending death. In the case at bench, although he made no
express statement showing that he was conscious of his impending
death, it was clear however, considering the fatal quality of his injury
and that he was barely heard by Ana when he uttered accused-
appellant's name, that his death was imminent, x x x.
Third. Declarant Enrique would have been competent to testify had he
survived.
Last. His dying declaration is offered in a criminal prosecution for
murder where he was the victim.10
Further, we agree with the CA in appreciating treachery as a qualifying
circumstance. The essence of treachery is the sudden and unexpected
attack on an unsuspecting victim, depriving the victim of any chance to
defend himself. Here, Randy witnessed that it was Villariez who shot his
father at the back. Enrique, deep in thought while listening to the burial
service, was unprepared and had no means to put up a defense.
Enrique was shot unexpectedly which insured the commission of the
crime without risk to Villariez. This treacherous act qualified the killing
to murder.
In sum, we find no cogent reason to depart from the decision of the CA.
Villariez is guilty beyond reasonable doubt of the crime of murder and
is sentenced to suffer the penalty of reclusion perpetua.
35
WHEREFORE, we DISMISS the appeal. We AFFIRM CA
SO ORDERED.chanrobles virtuallawlibrary
47. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee 
vs.ROMEO D. CALINA WAN a.k.a "MEO", Accused-Appellants
The Version of the Prosecution
At around midnight on September 26, 2007, Marigor
Silan (Marigor), Janice's seven (7)-year old daughter, saw
Calinawan stabbing her mother in their kitchen. Thereafter,
Calinawan quickly fled the scene. Meanwhile, Jonathan
Nevado (Jonathan), Janice's brother and neighbor, was
awakened by shouts coming from his sister's house. He rushed to
her house and saw her children crying. After bringing her children
to his house, he went looking for Janice whom he saw outside a
neighbor's house pleading for help. Seeing her bloodied, he
carried her and asked her who stabbed her, and she answered it
was Calinawan who did it. Then, Jonathan brought Janice to the
hospital. When Darwin Silan, Janice's husband, arrived at the
hospital, he also asked her who stabbed her and she reiterated
that it was Calinawan. After three (3) days, Janice died in spite of
the medical treatment at the hospital.4
The Version of the Defense
On September 26, 2007, Calinawan went to his mother's house in
Cablong, Sta. Barbara, Pangasinan, and arrived there at around
7:30 o'clock in the evening. From 8:00 o'clock to 9:00 o' clock in
the evening, he was drinking with his older brother. At around
2:00 o'clock in the morning of the following day, Calinawan was
awakened by police officers asking him about the killing of Janice.
He replied that he knew nothing about it, but he was still invited
by the police to go with them. At the police station, Calinawan
was asked if he had with him the dress worn by Janice which
.was soaked in blood. He presented the dress to the police but it
had no bloodstain. Thereafter, he was released by the police and
he went directly to his mother's house. 5
The RTC Ruling
In its May 14, 2012 decision, the RTC convicted Calinawan for
murder. The trial court noted that Marigor positively and
categorically identified him as the one who stabbed her mother. It
noted that she was able to identify him because of his amputated
fingers. In addition, the trial court pointed out that the dying
declaration of Janice to Jonathan corroborated Marigor's
statement that Calinawan killed her mother. The RTC stated that
his positive identification trumped his denial and alibi, which were
considered as inherently weak defenses. 6
Further, the trial court found that the killing of Janice was
attended by treachery. It stressed that the killing was carried out
during nighttime when Janice was defenseless. Thus, the RTC
concluded that given the circumstances surrounding the stabbing,
Calinawan consciously adopted the method and form of attack to
insure its execution. The dispositive portion of the RTC decision
reads:
WHEREFORE, premises considered, judgment is hereby
rendered finding accused Romeo Calinawan @ Meo GUILTY
beyond reasonable doubt of the crime of Murder defined and
penalized under Article 248 of the Revised Penal Code, and
pursuant to law, he is sentenced to suffer the penalty of
RECLUSION PERPETUA, and to indemnify the legal heirs of the
victim, ₱50,000.00 as actual damages, ₱100,000.00 as moral
damages, and to pay the cost of suit.
36
SO ORDERED. 7
Aggrieved, Calinawan appealed before the CA.
The CA Ruling
In its January 30, 2015 Decision, the CA sustained Calinawan's
conviction but modified the award of damages. The appellate
court agreed that the killing was attended with treachery. It noted
that Calinawan was a frequent visitor of Janice; and that he took
advantage of his knowledge that her husband was working at
night and that she was only accompanied by her children. The CA
was of the view that the sudden and unexpected attack against
an unarmed victim constituted treachery. 8
Moreover, the CA stated that Calinawan's denial and alibi could
not prosper in light of the positive identification by the witness. It
pointed out that Marigor's identification of him, despite his hooded
jacket, was sufficient because she identified him on the basis of
his physical deformity. The CA observed that he was the neighbor
of the victim for a long time and so, Marigor was familiar with the
farmer's physique - particularly his amputated fingers. It added
that the dying declaration of Janice corroborated Marigor's
identification of Calinawan. Thus, it disposed: 
WHEREFORE, in view of all the foregoing, the decision of the
Regional Trial Court, Branch 41, Dagupan City, in Criminal Case
No. 2007-0672-D, finding accused-appellant Romeo Calinawan
@ "Meo" guilty beyond reasonable doubt of the crime of murder
and sentencing him to suffer the penalty of reclusion perpetua, is
AFFIRMED with MODIFICATION. Accused-appellant Romeo
Calinawan @ "Meo" is ordered to pay the heirs of the deceased
the amounts of ₱75,ooo.oo as civil indemnity for death,
₱75,ooo.oo for moral damages and ₱30,ooo.oo for exemplary
damages as well as interest on all these damages assessed at
the legal rate of 6% from date of finality of this decision until fully
paid.
SO ORDERED. 9
Hence, this appeal.
ISSUES
I witness must have seen the face of the accused. Thus it ruled:
WHETHER CALINAWAN WAS POSITIVELY IDENTIFIED AS
THE ASSAILANT.
II
WHETHER THE KILLING OF JANICE WAS ATTENDED WITH
TREACHERY.
Calinawan argues that Marigor's identification of him was
unreliable because she admitted she never saw the face of her
assailant as it was covered by a black hood and that she closed
her eyes during the commotion. He claims that treachery was not
established and that the trial court merely made a general
assumption that the victim was defenseless because it was night
time. He insists that there was no evidence to show that he
consciously and deliberately adopted the means, method or form
of attack.
The Court's Ruling
The Court finds that Calinawan is criminally liable for the killing of
Janice.
The defense of Denial and Alibi fails in light of Positive
Identification
Calinawan challenges Marigor's identification of him on the basis
of her statement that she never saw the face of the assailant
37
because the latter was wearing a hooded jacket. He fails to
persuade. 
In People v. Caliso,   the Court explained that in criminal
10
prosecution, the identity of the accused must be established with
moral certainty, but this did not necessarily require that the
xxx In every criminal prosecution, no less than moral certainty is
required in establishing the identity of the accused as the
perpetrator of the crime. xxx The test to determine the moral
certainty of an identification is its imperviousness to skepticism on
account of its distinctiveness. To achieve such distinctiveness,
the identification evidence should encompass unique physical
features or characteristics, like the face, the voice, the dentures,
the distinguishing marks or tattoos on the body, fingerprints, DNA,
or any other physical facts that set the individual apart from the
rest of humanity. [Emphasis supplied]
11
Succinctly put, it suffices that the witness recognized the accused
through identifying marks which would make the latter
unmistakeably stand out from other individuals. In the case at
bench, Marigor's family and Calinawan had been neighbors for a
long time. Hence, she was very familiar with the latter's unique
physical characteristics, particularly his amputated fingers.
Through this distinct physical feature of Calinawan, Marigor was
able to identify him in open court as the one who stabbed her
mother. Thus, her identification of him was credible, even if she
was not able to clearly see his face, but saw the notable feature
of his hand, which set him apart from others.
Dying Declaration; Rule on Res Gestae
Marigor's positive identification was further bolstered by the
statement of Janice to Jonathan that it was Calinawan who
stabbed her. 
The courts a quo considered the said statement as an admissible
dying declaration. For a dying declaration to be deemed an
exception to the hearsay rule, the following conditions must
concur: (a) the declaration must concern the cause and
surrounding circumstances of the declarant's death; (b) that at the
time the declaration was made, the declarant was conscious of
his impending death; (c) the declarant was competent as a
witness; and (d) the declaration is offered in a criminal case for
Homicide, Murder, or Parricide where the declarant is the victim.
In this case, the Court notes that in her affidavit, Janice said that
she thought she could survive the attack. She never thought that
she was dying. In fact, she was optimistic of her recovery. In view
of this, there seems to be a doubt whether she was aware of her
impending death.
Granting there is such doubt, Janice's statement, nevertheless, is
admissible as an exception to the hearsay rule for being part
of res gestae. In order for a statement to be considered part
of res gestae, the following elements must concur: (a) the
principal act, the res gestae, is a startling occurrence; (b) the
statement was made before the declarant had time to contrive or
devise; and (c) the statement concerns the occurrence in
question and its immediately attending circumstances.  All the
13
foregoing elements are present in the case at bench.
First, the stabbing incident constituted the startling
occurrence. Second, Janice never had the opportunity to
fabricate a statement implicating Calinawan because she
immediately identified him as her attacker when Jonathan saw
her shortly after the assault took place. Lastly, the statement of
Janice concerned the circumstances surrounding her stabbing.
Thus, Calinawan's denial and alibi have no leg to stand. They are
inherently weak as defenses, especially when faced with the
positive and credible testimony of the prosecution witnesses
identifying the accused as the perpetrator of the crime. 14
38
Killing is Homicide only if Not Attended by Qualifying
Circumstances
The courts a quo convicted Calinawan of murder because they
were of the view that the killing was qualified by treachery
considering that the attack on Janice was so sudden that it
rendered her defenseless.
12
"There is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which
the offended party might make." 15
The following elements must be established before the existence
of treachery may be appreciated: (a) at the time of the attack, the
victim was not in a position to defend himself; and (b) the
accused consciously and deliberately adopted the particular
means, methods, or forms of attack employed by him.  The 16
suddenness or unexpectedness alone, however, of the attack is
insufficient to support the finding of treachery.
17
In People v. Silva,   the Court ruled that treachery could not be
18
presumed and must be proved by clear and convincing evidence
or as conclusively as the killing itself, to wit:
The trial court reasoned that the killing was attended by treachery
because the suddenness of the attack caught Leo offguard thus
preventing him from putting up any defense. We ruled in a litany
of cases that treachery cannot be presumed; it must be proved by
clear and convincing evidence or as conclusively as the killing
itself. The same degree of proof to dispel any reasonable doubt is
required before treachery may be considered either as an
aggravating or qualifying circumstance. Further, treachery must
be based on some positive conclusive proof and not only upon
hypothetical facts or on mere suppositions or presumptions.
The trial court erred when it presumed that the killing was Q: Why do you say that your mother is already in heaven?
qualified by treachery although the record shows that the witness
did not see the commencement of the assault. xxx Witness

A: She is already dead, sir.

xxx
Q: You mean your mother is already dead, do you know why she died?
In her earlier testimony, Estelita explained that it was the first shot
that prompted her to turn her head and it was only then that she A: Yes, sir.
saw Gerry Silva pointing his gun at her son who was already
bloodied. These statements are fraught with possibilities. Q: If yes, will tell the Hon. Court why she died?

Nagging doubts would crop up as to how the three (3) assailants A: She was stabbed, sir.
started the assault considering that there was an interval of time
from the moment Estelita's back was towards Leo until she heard xxx
the first shot. Before that she did not notice the presence of
Q: Can you still recall the time whether it is day time or night when the incident took
accused-appellants. One can argue that between the time when place?
Estelita's back was turned from the victim after she had taken
about two (2) steps away and the first shot, there was a lapse of A: Yes, sir.
more or less four (4) seconds. No other logical conclusion then
could be drawn but that the attack was sudden and unexpected. Q: Can you please tell the Hon. Court if it is day time or night time?
But this is not that simple. Where all indicia tend to support the
conclusion that the attack was sudden and unexpected but there A: It is night time, sir.
are no precise data on this point, treachery cannot be taken into
account. It can in no way be established from mere suppositions, Q: You said that your mother was stabbed, where did you see your mother when she
drawn from the circumstances prior to the moment of the was stabbed?
aggression, that the accused perpetrated the killing with
treachery.  [Emphases supplied]
19 A: In the kitchen, sir.

Q: When you said you saw your mother was stabbed in the kitchen was she alone or
In short, the evidence of the prosecution must be able to present had someone? 
the whole scenario to establish to exact manner of the killing, for
treachery to be appreciated. In the case at bench, it was only A: She has companion, sir.
Marigor who witnessed Calinawan stabbing her mother. Her
testimony is as follows: Q: Who is this person with her?

On direct examination A: It was Meo, sir.

Prosecutor Catungal Q: You mean Meo again?

39
A: Yes, sir.
Q: Did you actually see how Meo stab your mother?
A: Yes, sir.
Q: You said that you saw your mother and Meo in the kitchen, and you said you saw
Meo stabbed your mother, was the kitchen room with light?
A: Yes, sir.
Q: After you saw Meo stabbed your mother, what did Meo do next, if any?
A: He ran away, sir.
xxx
On cross examination
Atty. Carpizo
Q: You said earlier Marigor that you saw Meo and your mother in the kitchen on
September 26, 2007 in the midnight of said date?
A: Yes, sir.
Q: What were they doing at that time?
A: My mother was stabbed, sir.20 [Emphases supplied]
Other than Marigor's first-hand account, no other witness actually
saw the stabbing incident. Obviously, her narration of the events
that unfolded was crucial in determining how the killing was
perpetrated because she was the only one who actually saw its
execution. Her testimony, however, was lacking in details; thus, it
is insufficient to conclude that the killing was attended with
treachery.
Absent clear and convincing evidence on how the attack was
perpetrated, the conclusion that there was treachery is nothing
40
more but an assumption.  It is unfortunate that the particular
1âwphi1
means, manner or method of attack was never clearly illustrated
in her testimony leaving the evidence for murder wanting.
Under Article 249  of the RPC, the crime of homicide is
21
punishable by reclusion temporal. Calinawan's prison sentence
shall then be subject to the rules provided in the Indeterminate
Sentence Law.  Thus, the maximum term should be that which
22
could be properly imposed in view of the attending
circumstances, and the minimum should be within the range of
the penalty next lower to that prescribed by the RPC.
Here, no aggravating or mitigating circumstance can be
appreciated. When there are neither aggravating nor mitigating
circumstances, the penalty prescribed by law shall be imposed in
its medium period. 23
The aggravating circumstance of nighttime cannot be factored in
because there was no showing that Calinawan especially sought
the same or took advantage of it, or that it had facilitated the
commission of the crime by insuring his immunity from
identification or capture.  It is noteworthy that the attack occurred
24
in the kitchen of the house of Janice, which was sufficiently
lighted, enabling Marigor to identify him as the assailant.
Therefore, the sentence should be within the range of prision
mayor, as minimum, to reclusion temporal in its medium period,
as maximum.
Also, to conform with the prevailing jurisprudence,  the award of
25
civil indemnity and moral damages should be decreased from
₱75,000.00 to ₱50,000.00. Absent any aggravating circumstance,
the award of exemplary damages should be removed. The award
of temperate damages in the amount of ₱50,000.00 is also in
order.
WHEREFORE, the January 30, 2015 Decision of the Court of
Appeals in CA-G.R. CR.-H.C. No. 04593 is hereby MODIFIED, in
that, accused-appellant Romeo D. Calinawan a.k.a Meo is found
guilty of Homicide and sentenced 1] to suffer an indeterminate
penalty of Eleven (11) Years of prision mayor, as minimum, to
Fourteen (14) Years, Eight (8) Months and One (1) Day
of reclusion temporal, as maximum; and 2] to pay the heirs of
Janice Nevado Silan the amounts of ₱50,000.00 as civil
indemnity; ₱50,000.00 as moral damages; and ₱50,000.00 as
temperate damages, plus interest on all damages awarded at the
rate of 6% per annum from the date of the finality of this decision
until fully paid. 48. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee 
vs.CHRISTOPHER BADILLOS, Accused-Appellant
SO ORDERED.
THE FACTS

On 5 November 2007, Christopher and a "John Doe" were

charged with murder for the killing of Alex H. Gregory (Alex) in an
Information, the accusatory portion of which reads:

That [o]n or about the 11th day of August 2007, in the

[M]unicipality of Bocaue, [P]rovince of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and helping each other, armed with a knife
and with intent to kill one Alex H. Gregory, did then and there
willfully, unlawfully and feloniously, with treachery attack, assault
and stab with the said knife and hit with a piece of wood the said
Alex H. Gregory, hitting the latter on the left portion of his chest,
thereby inflicting upon him serious physical injuries which directly
caused his death.

CONTRARY TO LAW.  3

On 26 February 2008, Christopher, with the assistance of

counsel, was arraigned and pleaded not guilty to the charge
against him.   Trial on the merits thereafter ensued.
4

Evidence for the Prosecution

41
The prosecution presented three (3) witnesses, namely: Domingo
C. Gregory (Domingo), Jonathan Gregory (Jonathan), and Elsa
H. Gregory (Elsa). The prosecution also sought the presentation
of Cecilia Lopez (Cecilia), the forensic physician Police
Superintendent James Margallo Belgira (P/Supt. Belgira), and Dr.
Corazon Del Rosario (Dr. Del Rosario) as witnesses. Cecilia's
testimony, however, was dispensed with in view of the defense's
admission that it would only be corroborative with the testimonies
of Domingo and Jonathan. The testimonies of P/Supt. Belgira and
Dr. Del Rosario were also dispensed with in view of the defense's
admission of their respective qualifications, as well as the
authenticity of the contents of the documents they were to
identify. The combined testimonies of the prosecution witnesses
sought to establish the following:
Domingo testified that on 11 August 2007, at around 7:00 P.M. or
8:00 P.M., he and his cousin, Alex, were walking home to Brgy.
Malibo Matanda, Pandi, Bulacan, after attending the barrio fiesta
of Barangay Sta. Clara, Sta. Maria, Bulacan.   They were walking
5
along an alley or "tawidbukid' at Barangay Batia, Bocaue,
Bulacan, when, suddenly, Christopher and an unidentified person
appeared in front of them. Christopher was armed with a bladed
weapon, while the unidentified person held a wooden club more
particularly described as a "dos por dos."   The unidentified
6
person struck Alex with the wooden club three times hitting him
on the nape and at the back of his head. Christopher followed by
stabbing Alex once in his left chest.   Alex was able to run at first
7
but shortly after fell to the ground. The two assailants chased
Alex, but they failed to catch him as residents from nearby
houses started gathering near the scene. Thereafter, Domingo
ran towards the house of his co-worker to ask for help.   On
8
cross-examination, Domingo stated that the place where the
incident took place was well-lit by the street lights.
9
Domingo could not think of any reason or ill motive why
Christopher and his companion would harm Alex.   He recalled,
10
however, that Alex and Christopher had an argument prior to the
incident. He narrated that earlier that day, he, Alex, and
42
Christopher were among the guests of a certain "Bong" at the
barrio fiesta of Barangay Sta. Clara. At around 6:00 P.M., they
were partaking of food and drinks together with other visitors
when an altercation ensued between Alex and Christopher.   At11
that time, Domingo was speaking with someone else and could
not hear what the two were arguing about.   After that, Domingo
12
and Alex decided to go home, leaving Bong's house ahead of
Christopher. Domingo continued that they tried hailing tricycles
but when they failed to find a ride, they decided to walk
home.   Domingo could not estimate how far they had walked
13
before they were ambushed by Christopher and his companion.
He alleged, however, that the incident happened near the
residence of Christopher who was a resident of Barangay Batia.  14
Jonathan testified that at around 7:00 P.M. or 8:00 P.M. on 11
August 2007, he was in their house at Barangay Malibo Matanda
when his comadre, Cecilia, came and informed him that his
brother, Alex, was stabbed at Barangay Batia. After hearing the
news, he immediately rushed to his brother on his
motorcycle.   He arrived at the scene of the crime at around 9:00
15
P.M.   There, he saw Alex bloodied, sprawled on the ground, and
16
almost dying or "naghihingalo." While in this condition, Alex told
him that he was stabbed by "Boyet" whose real name was
Christopher.   After a while, a police mobile arrived and brought
17
Alex to the hospital. Alex, however, died on the same night. 18
Jonathan explained that they had known Christopher even before
the incident because he was their neighbor at Barangay Batia
when they were residing here.  19
On her part, Elsa, Alex's mother, testified that they incurred more
than ₱100,000.00 for the wake and funeral of Alex.   Of this
20
amount, however, only a total of ₱50,265.90 were supported by
receipts. 21
The medico-legal report  prepared by the forensic physician,
22
P/Supt. Belgira, revealed that Alex sustained multiple abrasions
on his head and a stab wound on his left pectoral region. P/Supt.
Belgira concluded that the cause of death was the stab wound.
Evidence for the Defense
The defense presented Christopher, his cousin Myrna
Acedillo (Myrna), and his uncle Alex Rapsing (Rapsing) as
witnesses. Their testimonies sought to establish the defense of
alibi, as follows:
Christopher testified that on 11 August 2007, at around 5:00 P.M.,
he was at Rapsing's house to celebrate the fiesta of Barangay
Sta. Clara.   While there, Domingo and Alex, both already drunk,
23
passed by Rapsing' s house. One of Rapsing's guests invited
Domingo and Alex to join their drinking session to which the two
accepted.   At around 6:00 P.M., Christopher decided to leave as
24
his mother had earlier instructed him to go to Canumay,
Valenzuela, to borrow money from Myrna. Rapsing's guests,
including Domingo and Alex, accompanied him to the tricycle
terminal which was about 50 meters away. 25
After boarding a tricycle and then another vehicle, Christopher
arrived at Myrna's residence between 7:00 P.M. and 8:00 P.M.
After he pledged his ATM card for ₱3,000.00, Myrna told him to
stay for the night as it was already late. Christopher left Myrna's
place and went home only on the following morning.  26
Christopher denied that he had anything to do with the death of
Alex. He insisted that he could not have stabbed Alex as he was
far from the scene of the crime at that time.   While he admitted
27
knowing Domingo as he was a former neighbor,  he denied
28
meeting Alex prior to 11 August 2007. 29
On his part, Rapsing testified that Christopher arrived at his
house on 11 August 2007 at around 4:00 P.M. He was his only
guest at that time as his kumpare, a certain Peter Genejada, had
yet to arrive. At around 5:00 P.M., after consuming two shots of
43
Emperador Light, Christopher left and proceeded to
Valenzuela.   On the other hand, Myrna testified that it was past
30
7:30 P.M. when Christopher arrived at her house. Christopher
sought Myrna's help in borrowing money.  At around 8:00 P.M.,
31
Myrna accompanied Christopher to borrow money from a certain
"Digoy." Thereafter, they returned to Myrna's house where
Christopher spent the night and stayed until the following
morning. 32
The RTC Ruling
In its decision, the RTC found Christopher guilty beyond
reasonable doubt of the crime of murder. It was convinced that
the prosecution was able to prove the identity of Christopher as
the person who stabbed and killed Alex. Moreover, the trial court
considered Alex's statement to Jonathan as a dying declaration
pointing to Christopher as his assailant. It did not give credence
to Christopher's defense of alibi noting the failure to demonstrate
physical impossibility of his presence at the crime scene at the
time of the incident. The trial court further appreciated the
aggravating circumstance of treachery to qualify the killing to
murder ratiocinating that Christopher, in committing the crime,
employed means, methods, or forms to insure its execution
without risk to himself. The dispositive portion of the decision
reads:
WHEREFORE, the foregoing considered, this Court hereby finds
accused Christopher Badillos GUILTY of the crime of Murder
penalized under the provisions of Art. 248 of the Revised Penal
Code. Accordingly, he is sentenced to suffer the penalty of
RECLUSION PERPETUA and to indemnify the heirs of Alex H.
Gregory: a. ₱75,000.00 as civil indemnity for his death; b.
₱50,000.00 as moral damages; and c. ₱50,265.90 representing
the funeral and burial expenses incurred by the family.
In the service of his sentence, accused who is a detention
prisoner shall be credited with the entire period he has undergone
preventive imprisonment.
SO ORDERED. 33
Aggrieved, Christopher filed a notice of appeal to elevate the
case to the CA.34
The CA Ruling
In its decision, the CA affirmed the 21 September 2012 RTC
decision. The appellate court opined that the trial court properly
considered Alex's last words to his brother as a dying declaration.
It also ruled that Christopher's alibi cannot prevail over his
positive identification by Domingo as the person who killed the
victim, and Alex's dying declaration pointing to Christopher as the
perpetrator. The appellate court further affirmed the trial court's
appreciation of the qualifying aggravating circumstance of
treachery. The dispositive portion of the appealed decision
provides:
WHEREFORE, the appealed Decision dated September 21, 2012
of the Regional Trial Court, Branch 78, Malolos, Bulacan in
Criminal Case No. 50-M-2008 is hereby AFFIRMED.
SO ORDERED. 35
Hence, this appeal.
THE ISSUE
WHETHER THE TRIAL AND APPELLATE COURTS ERRED IN
CONVICTING ACCUSED-APPELLANT CHRISTOPHER
BADILLOS FOR THE CRIME CHARGED WHEN HIS GUILT
WAS NOT PROVEN BEYOND REASONABLE DOUBT.
THE COURT'S RULING
The appeal lacks merit.
44
Alex's declaration cannot be
considered as a dying declaration;
admissible as part of res gestae.
Before proceeding to the main issue of this case, the Court notes
that the trial and appellate courts erred when they considered
Alex's utterances to Jonathan identifying Christopher as the
perpetrator of the crime as a dying declaration.
A dying declaration is admissible in evidence if the following
circumstances are present: (1) it concerns the cause and the
surrounding circumstances of the declarant's death; (2) it is made
when death appears to be imminent and the declarant is under a
consciousness of impending death; (3) the declarant would have
been competent to testify had he or she survived; and (4) the
dying declaration is offered in a case in which the subject of the
inquiry involves the declarant's death.  In order to make a dying
36
declaration admissible, a fixed belief in inevitable and imminent
death must be entered into by the declarant. It is the declarant's
belief of his impending death and not the rapid succession of his
death in point of fact that renders his declaration admissible as a
dying declaration. The test is whether the declarant has
abandoned all hopes of survival and looks on death as certainly
impending. 37
In his testimony, Jonathan narrated Alex's condition when he
uttered the name of the person who stabbed him, to wit:
PROS. MALAPIT:
Q. Did you actually reach that place?
A. Yes, sir.
Q. What did you find out?
A. I found my brother bloodied and sprawled on the ground.
Q. You were referring to Alex Gregory?
A. Yes, sir.
Q. What was his condition at that time?
A. He was "naghihingalo" and he told me the person responsible in stabbing him.
Q. What were the names given to you?
A. Boyet, sir.
Q. Do you know who is the Boyet referred to by Alex?
A. He is only [alias] Boyet but his real name is Christopher Badillos.38
xxxx
COURT:
Witness may answer.
A. It is true that he was "naghihingalo" and even tore his shirt and then he mentioned
to me the name of the person responsible.
Q. Can you describe how is "naghihingalo"?
A. I cannot explain his condition during that time. He was nagwawala na."39
While Jonathan was under the impression that his brother was in
the throes of death, it does not appear that the declarant himself
was conscious of his impending death. The fact that Alex was
ripping his shirt while he uttered the name of his assailant is not
sufficient to qualify such as a dying declaration.
Nevertheless, while Alex's statement does not qualify as a dying
declaration, the same may still be admitted as an exception to the
hearsay rule for being part of res gestae.
45
For a statement to be considered part of res gestae, the following
elements must concur: (a) the principal act, the res gestae, is a
startling occurrence; (b) the statement was made before the
declarant had time to contrive or devise; and (c) the statement
concerns the occurrence in question and its immediate attending
circumstances.  All the foregoing elements are present in this
40
case.
First, the stabbing incident constituted the startling
occurrence. Second, there was no sufficient time for Alex to
contrive or devise a falsehood when he uttered the name of his
assailant to Jonathan. Between the infliction of the mortal wound
upon Alex and his statement surrounding this incident, at most
two hours had elapsed. This interval of time is hardly sufficient to
conjure up a story or concoct and contrive a falsehood given that
even an interval of four hours is still considered as nearly
contemporaneous to the startling occurrence.   Lastly, the
41
statement concerned the circumstances surrounding the stabbing
of Alex.
No reason to disturb factual
findings by the trial court
In criminal cases, the established rule is that factual findings of
the trial court are generally accorded great weight and respect on
appeal, especially when such findings are supported by
substantial evidence on record. It is only in exceptional
circumstances, such as when the trial court overlooked material
and relevant matters, that this Court will re-calibrate and evaluate
the factual findings of the court below.
42
The Court finds no reason to depart from this rule especially
considering that the factual findings reached by the trial court
were affirmed by the appellate court.
Christopher insists that the prosecution failed to prove his guilt
beyond reasonable doubt because it was established that he was
in another place when Alex was killed.
This argument fails to impress.
Alibi is an inherently weak defense because it is easy to fabricate
and highly unreliable. To merit approbation, the appellant must
adduce clear and convincing evidence that he was in a place
other than the situs criminis at the time when the crime was
committed, such that it was physically impossible for him to have
been at the scene of the crime when it was committed. 43
In this case, to prove Christopher's alibi, the defense presented
Rapsing, who testified that Christopher was in his house at
Barangay Sta. Clara on 11 August 2007, and left at around 5:00
P.M. on the same day; and Myrna, who testified that Christopher
arrived at her house at Barangay Canumay, Valenzuela City, at
around 7:30 P.M. These testimonies, however, fail to show that it
would be physically impossible for Christopher to be present at
the crime scene when the crime was committed.
As aptly observed by the appellate court, Rapsing's account
covers only the events which transpired before the crime was
committed. Moreover, his narration of the events was inconsistent
with Christopher's version. First,Rapsing's statement that
Christopher arrived at his house at around 4:00 P.M. is
inconsistent with Christopher's testimony that he arrived at
Rapsing's house at around 5:00 P.M. and left at around 6:00
P.M. Second, Rapsing's account that Christopher was his only
guest at that time contradicts the latter's testimony that he was
joined by Domingo, Alex, and other guests at Rapsing' s house
for a drinking session. On the other hand, Myrna's testimony only
concerns matters which supposedly happened after the crime
had been committed.
46
In fine, the testimonies of the defense witnesses did not, in any
way, demonstrate the required physical impossibility on the part
of Christopher to be present at the scene of the crime at the time
of its commission.
Furthermore, alibi cannot prevail over the positive and credible
testimony of the prosecution witness that accused-appellant
committed the crime. Indeed, a categorical and consistent
positive identification, absent any showing of ill motive on the part
of the eyewitness testifying thereon, prevails over the defenses of
denial and alibi which, if not substantiated by clear and
convincing proof, constitute self-serving evidence undeserving of
weight in 1aw. 44
Domingo positively identified Christopher as one of the assailants
of Alex. He also categorically stated that Christopher was the one
who stabbed Alex. In addition, the victim himself told Jonathan
that it was Christopher who stabbed him. The Court sees no
reason to doubt Alex's positive testimony considering that the
prosecution was able to establish that the eyewitness is familiar
with both the victim and the accused; that the scene of the crime
afforded good visibility; and that no improper motive can be
attributed to the witness testifying against the accused.  The
45
Court also has no reason not to give credence to Alex's statement
as it has already been established that the same is part of res
gestae.
From the foregoing, it is clear that the trial and appellate courts
did not err in finding Christopher guilty beyond reasonable doubt
for the killing of Alex.
The crime committed is Homicide;
presence of treachery not
established.
In convicting Christopher of murder, the trial and appellate courts
appreciated the aggravating circumstance of treachery, finding
the attack on Alex sudden and unexpected. Specifically, the trial
court observed that Christopher and his companion deliberately
waited for the victim in the alley, armed themselves with
weapons, and attacked the unsuspecting victim in a swift and
abrupt manner giving him no opportunity to repel the aggression.
However, contrary to the pronouncements of the trial and
appellate courts, the presence of treachery was not established. 1âwphi1
Treachery is present when the offender commits any of the
crimes against the person, employing means, methods or forms
in the execution thereof, which tend directly and specially to
insure its execution, without risk to himself arising from the
defense which the offended party might make. 46
A finding of the existence of treachery should be based on clear
and convincing evidence. Such evidence must be as conclusive
as the fact of killing itself and its existence cannot be presumed.
In the absence of proof beyond reasonable doubt that treachery
attended the killing of the victim, the crime is homicide, not
murder. 47
Thus, for treachery to be appreciated, two elements must
concur: first, the malefactor employed such means, method or
manner of execution as to ensure his or her safety from the
defensive or retaliatory acts of the victim; and second, the said
means, method, and manner of execution were deliberately
adopted.   It has been consistently held, however, that mere
48
suddenness of an attack is not sufficient to constitute treachery
where it does not appear that the aggressor adopted such mode
of attack to facilitate the perpetration of the killing without risk to
himself.49
In this case, there was no showing that the mode of attack on
Alex was consciously adopted without risk to the assailants. In
the first place, the trial court's observation that Christopher and
his companion deliberately waited for Alex in the alley would
47
require the former to have a prior knowledge of the latter's plan to
-pass through the said alley at Barangay Batia. Based on
Domingo's narration of events, however, there was no opportunity
for Christopher to learn of such resolution. In his testimony,
Domingo narrated the events prior to the attack, as follows:
PROS. MALAPIT:
Q. After that what happened next?
A. I decided to go home.
Q. Who first left the place of your compadre, you and Alex or Christopher Badillos?
A. We left ahead, sir, to board a tricycle but all that passed were fully loaded so we
decided to return to my compadre and when we arrived there Christopher was no
longer there.
Q. After reaching the place from where you came, which is the house of
your compadre, what did you do next?
A. We decided to walk in the field. 50
Clear from Domingo's narration is the fact that he and Alex
decided to walk home along Barangay Batia only after they failed
to find a ride home. And at the time they arrived at that decision,
Christopher was no longer around to learn of such. Given these
circumstances, it is highly doubtful 'that Christopher could have
anticipated Alex along the alley or "tawid-bukid' at Barangay
Batia. Consequently, treachery cannot be appreciated to qualify
the crime to murder as the mode of attack could not have been
consciously or deliberately adopted. Without treachery,
Christopher can only be convicted of homicide.
Penalty and Monetary Awards
Under Article 249 of the Revised Penal Code, the penalty for
homicide is reclusion temporal. Considering that there is neither
aggravating nor mitigating circumstance, the penalty should be
imposed in its medium period pursuant to Article 64(1) of the
RPC. Applying the Indeterminate Sentence Law, Christopher
should be sentenced to an indeterminate penalty the minimum of
which should be within the range of the penalty next lower in
degree than that prescribed by law for the offense, that is, prision
mayor (6 years and I day to 12 years) and the maximum of which
should be within the range of reclusion temporal in its medium
period (14 years 8 months and I day to 17 year and 4 months).
Accordingly, the Court imposes upon Christopher the 49.People of the Philippines Vs. Maria
indeterminate penalty ranging from twelve ( 12) years of prision
mayor, as minimum, to seventeen (17) years and four ( 4) months Cristina P. Sergio and Julius L.
of reclusion temporal, as maximum. Lacanilao(DOWNLOAD SA SC!)
Further, following People v. Jugueta,   Christopher is ordered to
51

pay (1) ₱50,000.00 as civil indemnity; and (2) ₱50,000.00, as

moral damages. In addition, he is also ordered to pay ₱50,
265.90 for the funeral and burial expenses incurred by Alex's
family.
1âwphi1

WHEREFORE, accused-appellant Christopher Badillos is

found GUILTY beyond reasonable doubt of the crime of
Homicide, defined and penalized under Article 249 of the Revised
Penal Code. He is sentenced to suffer the indeterminate penalty
of twelve (12) years of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal, as
maximum. He is further ordered to pay the heirs of the deceased
Alex H. Gregory the following: ₱50,000.00 as civil indemnity;
P50,000.00 as moral damages; and ₱50,265.90 representing the
funeral and burial expenses. All monetary awards shall earn
interest at the rate of six percent (6o/o) per annumreckoned from
the finality of this decision until their full payment. 
52

SO ORDERED.

48