No. L-12449.

 May 30, 1961.

PEOPLE OF THE PHILIPPINES, p l a i n t i ff -
appellee, vs. ESPIRIDION ALIDO, ET AL., defendants. INOCENCIO
HERVAS and MARCELO HERVAS, defendants-appellants.
Criminal Law; Murder; Indications of Guilt.—The conduct of the accused,
who was a first cousin of the deceased, in not initiating the move to have the
authors of his cousin’s death investigated, his advice of a prompt burial, and his
advice to the widow to declare that her husband had been killed by a bolo
wound, and not by a gunshot wound, attest to his interest in suppressing the truth
to save himself, and indicates a guilty conscience.
Same;   Identity of the Accused;   Judicial Notice.—The Court may take
judicial notice of the fact that during the months of May and June, the days are
long and the sun sets after 6:00 in the afternoon, for which reason, although it
was actually 6:00 in the afternoon when the assault was made, the witnesses
could easily see and recognize the assailants because it was not yet dark and
considering that the said assailants were well known to them.
APPEAL from a decision of the Court of First Instance of Iloilo.
Imperial Reyes, J.

The facts are stated in the opinion of the Court.

     Solicitor General for plaintiff-appellee.
     Felipe R. Hipolito for defendants-appellants.
LABRADOR, J.:

Appeal from a decision of the Court of First Instance of Iloilo, Hon. F.

Imperial Reyes, presiding, finding accused-appellants Inocencio Hervas
and Marcelo Hervas guilty of the murder of their cousin, Francisco
Hervas, and sentencing each of them to reclusion perpetua and to pay
1/3 of the indemnity of P6,000. Espiridion Alido was also sentenced to
suffer the indeterminate penalty of from 10 years and 1 day of prision
mayor   to 17 years, 4 months and 1 day of   reclusion temporal,   to
indemnify the heirs of the deceased Francisco Hervas 1/3 of the sum of
P6,000,
110
110 SUPREME COURT REPORTS ANNOTATED
 People vs. Alido
not appeal.
On or before May 29, 1955, Francisco Hervas, his wife and their
children were living in their house on a land situated in the barrio of
Dagami, Municipality of Maasin, Province of Iloilo. At about 6:00 in the
evening of that day, Francisco Hervas heard some noise coming from his
cornfield near their house, so he went to the batalan to find out what was
the noise about, but suddenly a shotgun exploded from the neighboring
field, and the shot from it hit him on the chest and died. The next day,
the widow, Concepcion Laserna sent her eldest child, Ofelia Hervas, to
the house of Inocencio Hervas, one of the accused, which was nearest
their house, and to the house of the brother of the deceased, Proceso
Hervas, farther away, to inform them of the incident. The brother of the
deceased happened to be away from home and as Ofelia returned, she
passed by the house of Inocencio Hervas, informing him that the brother
of the deceased could not come, so Inocencio went to the house of the
victim, accompanied by three individuals who helped him dig the grave
some distance away from the house and there interred him.
No steps were taken by the family or by relatives of the deceased to
investigate who the author of the crime was. But news of the killing
came to the ears of the Philippine Constabulary. So one day the
Philippine Constabulary had the remains of the deceased exhumed.
Those present at the exhumation were the investigator of the
Constabulary, Sgt. Pelagio Agraviador, the Chief of Police, the sanitary
inspector and the municipal mayor. They proceeded to the barrio of
Dagami, passing first by the house of Inocencio Hervas, and with the
latter they went to the place where the body of the deceased had been
interred. The grave was dug and the dead body was brought out. They
found out that there were nine pellet holes.
Thereafter, the Constabulary began questioning the widow,
Concepcion Laserna. Her statement was taken at the municipal building
and she declared that she was able to recognize Espiridion Alido as the
one who shot her husband, accompanied at the time of the shooting by
two persons whom she could not recognize. This statement (Exhibit
“1” Alido, 2 Hervas), of Concepcion Laserna was made on June 13,
1955. A similar statement was made by her daughter, Ofelia Hervas, and
to the same effect.
The municipal police of Maasin could not effect the arrest of Alido,
but before July 13, 1955, he surrendered to the Philippine Constabulary
at Sta. Barbara, Iloilo. He surrendered to Sgt. Silverio Balmaceda at the
barracks. Balmaceda referred him to Cpl. Delfin de la Torre, who was
then investigator of the company. Alido’s statement was taken down in
writing and was presented in court during the trial as Exhibit “C”.
According to this statement, Inocencio Hervas invited him on May 29,
1955 to the house of one Carlos Camral, on the occasion of the killing of
a pig; that in the afternoon of that day, Inocencio, he and Marcelo
proceeded to the house of Francisco Hervas, armed as follows:
Inocencio, with a shot gun (paltik), Marcelo with a rifle, and he with a
bolo; that once near the house of Francisco Hervas, he heard one shot
and upon hearing it he ran away, returning to the house of Carlos
Camral; that about 9:00 that evening, Inocencio Hervas came back to the
house of Camral with a shotgun, boasting that they could now live in
peace because the arrogant man is already dead (referring to the
deceased Francisco Hervas.)
As a result of this affidavit of Alido further investigations were made.
Concepcion Laserna was again examined, this time before the Justice of
the Peace of Maasin, and she then declared in her affidavit (Exhibit
I, Alido, 3 Hervas) dated July 20, 1955 that it was Inocencio Hervas
who fired the shot that killed her husband, and that Marcelo Hervas
and Espiridion Alido were with Inocencio at the time of the shooting.
On July 20, 1955, the information was filed in the Justice of the Peace
Court of Maasin, charging the three accused with the murder of the
deceased. The information charges the accused with having committed
the crime with treachery and evident premeditation.
Concepcion Laserna testified at the trial that three persons had
approached their house on the afternoon of May 29, 1955, namely,
Inocencio Hervas, Marcelo Hervas and Espiridion Alido; that Inocencio
was provided with a paltik, Espiridion had a rifle and Marcelo had a
bolo; that she actually saw that it was Inocencio who fired the shot that
killed her husband; and that as soon as her husband had fallen down
after the shot, the three persons ran away. She further declared that she
saw the assailant because she was at the time of the shooting at the
window of their house. Demetrio Hervas, a son of the deceased, also
testified and declared that when his father went to the batalan, attracted
by a noise in the cornfield, he (witness) was at the door of the house; that
when he heard the shot which felled his father, he immediately directed
his eyes towards the place where the explosion had come and saw the
aggressor, Inocencio Hervas, and his companions, Marcelo Hervas
and Espiridion Alido.
Upon being asked why in her statement made before the Municipal
Mayor on June 13, 1955 (Exhibit “2”—Hervas; Exhibit “1”—Alido),
she declared that she saw Espiridion Alido fired the shot that killed her
husband and that she did not recognize   Alido’s companions, she
explained that at that time she was under the influence of fear of
Inocencio Hervas. Explaining this, she declared that the morning after
the shooting she sent her daughter Ofelia to the house of Inocencio
Hervas to tell him that she should bury her husband; that Inocencio
Hervas threatened to kill her if she should disclose or point to him as the
author of the death; that he just suggested to her that she should explain
that the cause of her husband’s death was his having bolo wounds,
instead of gunshot wounds. Upon being asked the probable reason why
her husband was killed by the accused, she declared that it was because
the accused had taken away bamboos from the land which the deceased
was taking care of, and her husband had denounced them to the owner of
the land, namely, Eugenio Maquiling.
The Constabulary investigator, Sgt. Pelagio Agraviador, who had
seen the exhumation, corroborates this alleged fear of Inocencio Hervas
of Concepcion Laserna. He testified that at the time he was investigating
Concepcion Laserna, Inocencio Hervas was present, and that every time
Concepcion was asked a question she would first look at Inocencio
before answering the question. Further elaborating on the matter, this
witness declared that when the investigation was being made in the
building of the puericulture center, the persons who were present were
Concepcion Laserna, her daughter Ofelia Hervas, Inocencio Hervas, a
policeman and himself, and that he observed that every time a question
was directed to Concepcion Laserna, she would look at Inocencio, who,
in turn would look at her with sharp eyes; that he noticed such interest
on the part of Inocencio that in the middle part of the questioning of
Concepcion, he had to ask Inocencio to go out. He also declared that
when Ofelia Hervas was investigated, Inocencio Hervas again went
inside the room where the investigation was being conducted and again
he had to ask him to go out of the room, because he wanted to have
secrecy in the investigation.
All of the three accused denied having participated in the commission
of the crime, including Espiridion Alido, who did not appeal from the
decision. Inocencio Hervas declared that he was always in good terms
with Francisco Hervas and his wife; that he was living at a distance of
one-half kilometer from the house of Francisco Hervas, and that the one
carrying the work of the family was the wife, Concepcion Laserna,
because one of the hands of Francisco Hervas had been cut in a fight
during the Japanese regime; that about 4:00 o’clock in the afternoon of
the day of the shooting, he had to go to the house of one Carlos to help
in the slaughter of a pig, and did not know of the death of Francisco
Hervas until the following morning when the daughter of the deceased,
Ofelia, informed him thereof; that when she went to the house of
Francisco there was no one there except the wife and the children, and
when he asked her if she recognized the persons who killed her husband,
she answered she did not because it was very dark; that thereafter she
left the house and went home, with the instruction that when the brother
of the deceased would arrive he (the accused) would be called. Further
testifying, he declared that he returned at about 4:00 in the afternoon,
and that since the younger brother of the deceased, Proceso Hervas, did
not come, they buried the deceased with the help of his children, namely,
Carlos, Martin and Juan. Testifying on the exhumation, he declared that
the mayor, the Chief of Police and some policemen came on the Sunday
following the burial on Monday; that the Chief of Police and the mayor
called for him at his house; that the son of Francisco Hervas, named
Demetrio Hervas, Juan and Martin were also called; that some
Philippine Constabulary soldiers were also with the party, and that it was
he and the son of Francisco that indicated to them where the body was
buried; that they did not make any investigation that afternoon because it
was already very late when the exhumation was finished; that they
passed the night at his house and the following morning the party
returned back to the poblacion together with the wife of the deceased.
He also testified that he, the widow and her children were brought to
town, as the Mayor had asked him to accompany the widow. He denied
that at the time the widow was being investigated, he used to look at her
with sharp eyes. On being asked the possible reason why he was being
accused, he declared that he had an altercation with one Estong Amorte
and Fabian Resano, because when a certain parcel of land was surveyed,
he stopped them because his brother Marcelo was not present. (It is
important to note that the land which was supposed to be surveyed
appears to be the cause of the trouble, as it is the very land occupied by
Francisco Hervas. Francisco Hervas was the one named by the original
owner, Eugenio Maquiling, to cultivate and stay on the land. Later,
Maquiling transferred it to Estong Amorte and Fabian Resano.)
The accused Marcelo Hervas also denied the imputation, declaring
that on the day of the shooting, he was away from his house, and that he
learned of the death of Francisco Hervas only when he arrived home on
Tuesday (killing occurred on Monday). He stated that he had come from
the poblacion because he was engaged in the business of making gold
teeth for his patients, so he had to go to the poblacion very often; that on
the day following his arrival on Tuesday, he asked for the wife of the
deceased, and he inquired from her what was the cause of her husband’s
death, and she had answered that the deceased had stepped on a bolo;
that she told him that at the time of the wounding of her husband she had
heard a sound similar to a falling can. Asked if there was any ill-feeling
between Francisco Hervas and his family, he declared that there was
none and the deceased even frequented his house to drink   tuba,   the
deceased being his first cousin. Asked what the probable reason was why
the widow had pointed to him as one of the authors of the death of her
husband, he declared that she acted under the advice of their enemies
Estong Amorte and Fabian Resano. Explaining this matter, he said that
Fabian Resano had purchased a piece of land from Arcadio Maquiling,
the son of Eugenio Maquiling, and as Resano surveyed the land, he
(Resano) tried to include the land belonging to him (Marcelo), and that
he (Marcelo) did not agree to this. As to the charge that he had been
stealing bamboos, he answered that the bamboos were not Maquiling’s
but his own.
A consideration of the circumstances brought out at trial both by the
prosecution as well as by the defense, indicate that the probable cause of
the killing is, as indicated by the widow, Concepcion Laserna, that is,
Inocencio Hervas and Marcelo Hervas resented the act of Francisco
Hervas in denouncing them for cutting bamboos on the land of
Maquiling. The land on which the house of Francisco Hervas is erected
belonged to Eugenio Maquiling. Marcelo Hervas claimed that the
bamboos that he cut were his own; that when the land of Maquiling was
sold to Fabian Resano and the latter was trying to survey it, Marcelo
objected to the survey on the ground that Resano was including a portion
of his own land. Both accused-appellants Inocencio and Marcelo, both
surnamed Hervas, admitted that the relationship between them and the
deceased and his family was cordial. There is, therefore, no reason why
the widow should point out to Marcelo and to Inocencio as the authors
of the death of her husband, unless she and her children had actually
seen them do the criminal act.
Her statement when she was brought to the municipal building for
investigation on June 13, 1955 pointing to Espiridion Alido as the one
who killed her husband and that his companions could not be recognized
by her must have been due to the fact that she was then under the
influence of fear of Inocencio Hervas. The conduct of Inocencio Hervas,
a first cousin of the deceased, in not initiating the move to have the
authors of the death of his cousin investigated and his advice of a prompt
burial, indicate a guilty conscience—he must have had part therein and
he wanted to be saved from being held to account for the murder. His
advice that the widow should declare that the deceased had been killed
by a bolo wound also attests to his interest in suppressing the truth,
certainly to save himself. The testimony of Marcelo to the effect that the
widow had told him that the deceased died of a bolo wound is the very
explanation that was taught by Inocencio Hervas to the widow. Both of
them, Inocencio and Marcelo, must have thought of pretending that the
death of Francisco Hervas was due to a bolo wound, not from a gunshot
wound, to suppress or prevent the investigation of the crime. Marcelo
Hervas was the barrio lieutenant. Why did he not take steps to have the
matter reported to the authorities for investigation? His only excuse was
that the widow supposedly told him that he died of a bolo wound. If he
was satisfied with this false explanation, it must have been because he
wanted to shelter the culprits from investigation, which fact in turn
shows also a guilty mind.
The statement of the widow on June 13, 1955, when examined by the
municipal mayor, is explained away by the testimony of the sergeant of
the Constabulary who was present at the time of the taking of the
statement, to the effect that every time a question was asked the widow,
she would look at Inocencio for an answer. This corroborates the story of
the widow that she was then under influence of Inocencio and her fear of
him.
We are satisfied with the above circumstances and explanation of the
widow that her statement on June 13, was induced by her fear of
Inocencio. Proceeding now to the consideration of the direct evidence,
we find that both Demetrio Hervas, 15 years old, and his mother,
Concepcion Laserna, positively asserted that they saw the three
accused Espiridion Alido, Marcelo Hervas and Inocencio Hervas near
their house on May 29, 1955 and that they recognized the latter as the
one who fired the shot from the “paltik”, that killed Francisco Hervas.
Demetrio Hervas testified that it was in the afternoon when the assault
was made. The statement of the widow before the mayor on June 13,
1955 placed the time of the assault at 6:10 in the afternoon. We take
judicial notice of the fact that in the month of May and June, the days
are long and the sun sets after 6:00 in the afternoon, for which reason
even though it was actually 6:00 in the afternoon, when the assault was
made, both Demetrio Hervas and his mother could easily see and
recognize the assailants of the deceased because it was not yet dark. The
assailants are well known to them, two of them being first cousins of the
deceased; so was Alido known to them. It is not necessary that their
faces were clearly seen; a person can easily be recognized from his
stature, by the way he stands and moves. We are, therefore, satisfied that
the two witnesses,—the widow and her son, actually recognized the
assailants as Espiridion Alido, Inocencio Hervas and Marcelo Hervas.
The testimony of the boy, Demetrio, could not be impeached on the
cross-examination. His testimony was positive and direct, leaving
absolutely no doubt as to the circumstances under which he saw the
shooting and the certainty of his identification of the accused-appellants.
As to the widow, the explanation given as hereinabove stated, to the fact
that she was under the influence of fear of Inocencio Hervas, sufficiently
explains why in her statement before the mayor on June 13, 1955, she
pretended not to have recognized the companions
of Espiridion Alido on the evening of May 29, 1955.
There was one other last incident which proves the consciousness of
guilt of Marcelo Hervas. This is the fact that he pretended to be away
and was not in his house when Ofelia went to notify him of the death of
her father. When the Constabulary also went to his house, when the
matter was investigated, after the surrender of Alido, he again was not at
home. As a barrio lieutenant, he should have been the first to make steps
to report the crime, but he pretended to be away. These are the
circumstances which show consciousness of guilt on his part.
With the above circumstances and the testimony of two witnesses
identifying the two accused-appellants and the finding of the trial judge
who heard the witnesses and the appellants testify, that the appellants are
guilty, we are forced to the conclusion that the said accused-appellants
participated in the commission of the offense charged, jointly
with Espiridion Alido and are guilty thereof. The crime committed is
that of murder, qualified by the circumstance of alevosia, as the attack
was unexpected and the victim was given no opportunity to defend
himself. As to the aggravating circumstance of evident premeditation, it
is true that the confession of Espiridion Alido, Exhibit “C” is to the
effect that Inocencio had invited   Alido, to go with them to kill the
deceased, and that he provided his companions with requisite arms.
However, this confession of Alido is not admissible in evidence against
Inocencio Hervas and Marcelo Hervas. We therefore had no sufficient
evidence of the evident premeditation.
WHEREFORE, we affirm the judgment of the court below finding
the appellants guilty of murder and the sentence imposed upon each of
them with costs of this appeal against the appellants.
         Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes,
J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
     Barrera, J., took no part.
Judgment affirmed.
_______________
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PEOPLE OF THE PHILIPPINES, p l a i n t i ff -
appellee,   vs.   JUAN   AYONAYON   and GASPAR ACERADOR,
defendants-appellants.
Evidence; Alibi; Weight in calculation of time.—The defenses of alibis are
of very little weight or value when given by relatives of the accused. When they
stated that they were in their respective homes around 6:00 o'clock in the
evening of the crime, the time given was merely a calculation, because what may
have been considered by one witness as 6:00 o'clock may actually have been
5:30, etc. The time is immaterial where witnesses for the prosecution positively
identified the accused.
APPEAL from a decision of the Court of First Instance of Ilocos Sur.
Antonio, J.
The facts are stated in the opinion of the Court.
     Solicitor General for plaintiff-appellee.
     Bonifacio T. Doria for defendants-appellants.
LABRADOR, J.:

This is an appeal from a decision of the Court of First Instance of llocos

Sur, Hon. Felix Q. Antonio, presiding, finding Juan   Ayonayon   and
Gaspar Acerador guilty of murder, for the killing of Florentino Lazo and
Jose Lazo and, frustrated murder, for the wounding of Genoveva Lazo,
and sentencing each of them to death for the crime of murder, and to an
indeterminate penalty of from 3 6 yea of prision mayor as minimum, to
14 years, 3 6 mont hs 1 day of reclusion temporal as maximum, for the
frustrated murder, with the proper indemnities and the accessories of the
law, and to pay each his proportional part of the costs.
The evidence for the prosecution shows that on August 5, 1959,
while Florentino Lazo and members of his family, namely, his wife,
Juana Resuello, his children, Jose Lazo, 25 years, Pergentino Lazo, 17
years, Genoveva Lazo, 21 years, Samuel Lazo, 3 6 year s, and Juan La
zo, 12 were taking their supper around a low table in the bamboo kitchen
of their house at barrio Namalpalan, Municipality of Magsingal, Ilocos
Sur, their two dogs suddenly started barking and running to and fro,
below and near the house. Genoveva Lazo called the attention of her
father to the unusual behaviour of the dogs and commented that there
must be some persons on the ground. So she stood up and peeped thru
the window of the kitchen and saw a man dressed in dark green fatigue
clothes, standing on the ground on the opposite end of the kitchen,
peeping at the southwestern part thereof in a semi-stooping position,
with his gun pointed thru the corner of the kitchen. The kitchen floor
was about four feet eight inches from the ground. The wall of the
kitchen was made of bamboo split and flattened as in "sawali". She
heard a burst of gunfire (parac-pac-pac) and she felt that she was hit on
her left shoulder. She fell to the floor of the kitchen wounded, and lying
flat on the floor hid herself near the stove.
With the first burst of the gunfire, Jose Lazo was also hit and he fell
dead on the floor of the kitchen. Pergentino Lazo, upon observing the
gunfire and what had happened to his brother and sister, promptly ran
away from the kitchen, crossing the batalan that separated the kitchen
from the sala, and to the sala, towards a side beside a wardrobe. Here,
behind the wardrobe, he hid himself. From this position, behind the
wardrobe, he heard gunfire from the batalan near the stairs of the house,
and, directed his eyes to the place where the gunfire came from, he saw
through the opening of the window just above the stairs, the accused
Juan Ayonayon and his companion, the other accused Gaspar Acerador.
From the top of the stairs, the accused fired at his father who had run to
the sala, but who fell down on the other side opposite the wardrobe.
Juana Resuello, got her two minor sons in her arms, Juan and
Samuel, and tried to run away from the kitchen also. It so happened,
however, that her husband Florentino was already ahead of her and was
already crossing the batalan that separated the kitchen from the sala,
running to escape from the gunfire.
As she was about to cross the batalan to the sala, she saw towards the
left the two accused Juan   Ayonayon   and Gaspar Acerador. At that
time, Ayonayon was already on top of the stairs, while his companion
was on the last rung of the stairs.
The prosecution also proved that, that same evening, upon receipt of
news of the murders in the barrio of Namalpalan, a group of
Constabulary soldiers stationed in the poblacion, together with the
municipal health officers and others, went to the scene of the murders.
The soldiers found-30-calibre empty shells on the ground near the
kitchen, also on the batalan above the stairs. They also found that the
walls of the kitchen and a wall of the sala was pierced by bullet holes.
The dead body of Florentino Lazo was found lying on the floor of the
sala, and that of Jose Lazo also in the kitchen, both of them riddled with
bullets. Genoveva Lazo was found near the stove. Pergentino Lazo, upon
being questioned by the Constabulary sergeant, gave details of the
incident, also already described by the witnesses for the prosecution, and
pointed to the two accused herein as the ones responsible for the assault.
It is also shown that paraffin casts were taken of the hands of both
accused and the casts, upon examination in the National Bureau of
Investigation, had positive traces of nitrate.
Various slugs were extracted from the body of the deceased Jose
Lazo and another was also extracted from that of Genoveva Lazo, and
these, upon examination, were found to have been fired from a semi-
automatic or an automatic .30-caliber carbine, from the same gun firing
the empty shells.
It was further shown that upon learning who the assailants were, as
per information by Pergentino Lazo, two soldiers went to the house of
accused Gaspar Acerador. He was not in his house and as he was then
wearing undershirt and drawers, he had to be taken to his house so he
could put on his clothes, before being brought to town for examination.
The constabulary men who accompanied him to his house saw that a
green fatigue suit and poncho were hanging on the wall. On the other
hand, Juan Ayonayon was arrested by a Constabulary captain and his
company that same evening in the house of Marcelino Uberita in Santo
Domingo, about seven kilometers from Magsingal.
As possible motive for the crime, it was shown that accused Gaspar
Acerador had been accused of the murder of Pablo Resuello, the brother
of Juana Resuello, wife of Florentino Lazo, the deceased. On the other
hand, Florentino Lazo used to drive a carromata where Hipolito Peralta,
who was accused of the murder of a relative of a cousin of Ayonayon,
usually rode in going to court. While nobody could testify as to the
motive of the murder, it is apparent from these circumstances that
enmity must have existed between Florentino Lazo and his wife Juana
Resuello on one hand, and the accused Gaspar Acerador and
Juan Ayonayon, on the other.
The defenses presented by the accused are alibis testified to by their
respective relatives. Juan Ayonayon stated that at about 6:00 o'clock in
the evening of the day in question, he was in the house of his cousin
Engineer Uberita in Santo Domingo, with whom he was living then. But
the barrio of Santo Domingo is only seven kilometers from the house of
the Lazos, the victims, and he could easily have gone from his place of
residence to the house of the Lazos in 10 minutes by jeepney. For his
part, Acerador was living in a barrio of Panay, which is only a kilometer
away from the scene of the crime. The fact, therefore, that the relatives
of the accused stated that they were in their respective houses around
6:00 o'clock in the evening of the day of the crime, does not discount the
possibility that the accused themselves had actually gone to the house of
their victims at about the time of 6:00 o'clock in the evening. It must be
noted that the time given was merely a calculation, and what may have
been considered by one witness as six o'clock may actually have been
5:30, etc. So that the defenses of alibis appear to Us as of very little
weight or value, especially in view of the fact that the witnesses for the
prosecution clearly identified the accused, such identification being
positive and immediate because given as soon as the officers of the
Constabulary arrived.
We will now proceed to the principal issue, namely, whether the
three witnesses who testified to having identified the accused were
really in a position to and did actually identify them. The first witness
was Genoveva Lazo who said that she peeped out of the window and
saw the face and figure of a man who later she identif ied as Gaspar
Acerador. The description that she gave at the trial coincides with the
physical features that the court saw in the person of the said accused at
the time of the trial. Gaspar Acerador was also identified by the wife of
the deceased, Juana Resuello, who declared that Acerador was seen by
her on the last rung of the stairs leading to their batalan. Pergentino
Lazo also identified both accused when, looking thru the window near
the stairs, he saw them firing their guns at the deceased Florentino Lazo.
With respect to Juan Ayonayon, his identification by Juana Resuello
is beyond question. As Juana was going to cross the batalan, she saw
Juan Ayonayon already on the batalan and was about to speak to him.
He, Ayonayon, was known to her, consequently, the identification was
prompt and immediate. It is a fact that when one meets a person known
to him, identification takes place at first sight, so the testimony of Juana
Resuello that she identified Ayonayon, who was known to her, should be
accepted. The same fact of identification is true a? to the other accused
Gaspar A cerador, also known to Juana Resuello. As to the testimony of
Pergentino Lazo, which testimony is being attacked, it is to be noted that
he saw the two accused while the latter were already on
the batalan. From a diagram of the house, We note that place where the
accused were standing, while firing at the deceased Florentino Lazo, was
visible through a window from the place beside the   aparador   where
Pergentino Lazo, had stationed himself. But the fact that Pergentino
Lazo, when the officers came in the same evening, declared to the
Constabulary officers that the assailants were Ayonayon and Acerador,
this readiness, shows that he was able to positively identify them at the
time of the assault, the accused being known to him.
Counsel for Acerador argues that since at the time of the assault,
which was 6:00 o'clock in the evening, it was already dark, the accused
could not have been identified by Genoveva Lazo, Juana Resuello or
Pergentino Lazo. We checked the time when the sun set on August 5,
1959 and We have been informed that the sun set on that date at about
6:38 in the evening, which shows that at 6:00 o'clock, the surrounding of
the house where the victims were shot, were not yet dark. The use of a
kerosene lamp inside a house does not mean that outside the house,
where the assailants were seen, was also dark. The inside of a house is
necessarily darker than the outside; so the use of a kerosene lamp while
the inmates are taking supper, does not mean that persons outside cannot
be identified from within the house.
 Capital is made of the fact that the witness Genoveva Lazo said that
during the day there were stars. She did not say that during the daytime
there were stars; she must have meant that during the time when the
assault was made there were stars in the sky at night. Besides we take
judicial notice of the fact that while it is true that the month of August is
characterized by showers or rains, they generally are passing showers
and rains, after which the atmosphere becomes clear.
But as the most compelling reason why the witnesses for the
prosecution must be believed as to the identification of the accused
by them, is the fact that they had no cause or reason to charge or
point out the accused as the ones responsible for the offense, there
being no strong reason why they should violate their oaths and
declare falsely.
After a review of all the evidence, We are convinced that the two
accused were really the ones who assaulted and fired at Genoveva,
Florentino and Jose Lazo, and killed Florentino Lazo and Jose Lazo, and
that their guilt has been proved beyond reasonable doubt. The penalty
that was imposed by the lower court is that of death for the murders of
Florentino Lazo and Jose Lazo. There is no question that the murders
were committed with the qualifying circumstance of evident
premedidation, and with the aggravating circumstances of treachery and
dwelling of the offended party. But while the penalty imposed appears
justified by the aggravating circumstances, there is no sufficient number
of votes to affirm the penalty of death for the reason that it does not
appear from the evidence that the accused-appellants were so perverse as
to deserve the supreme penalty. Hence, no sufficient number of Justices
voted to affirm the imposition of the death penalty.
WHEREFORE, the decision appealed from is hereby modified by
imposing upon each of the accused-appellants the penalty of reclusion
perpetua   for the murder of Florentino Lazo and Jose Lazo, but the
judgment is hereby affirmed in all other respects. The judgment and
sentence imposed upon them for the wounding of Genoveva Lazo is
affirmed, with costs against accused-appellants. So ordered.
     
People of the Philippines vs
Madera
On August 8, 2012
57 SCRA 349 – Legal Ethics – Prosecutor Must Recommend Dismissal
of Case If There is No Ground To Sustain It
In April 1970, while Elino Bana was sleeping in his house, he was shot
by Raymundo Madera. Behind Madera were Marianito Andres and
Generoso Andres. Elino Bana died before he could be brought to the
hospital but he made a dying statement wherein he positively identified
Madera as his shooter. Two of Bana’s sons who were at the house when
the shooting happened identified Madera as the shooter as well as the
two behind him. The trial court convicted the three for murder. They
appealed. Then Solicitor General Estelito Mendoza recommended the
conviction of Madera but also recommended the acquittal of Marianito
and Generoso.
ISSUE: Whether or not the conviction is correct.

HELD: No, insofar as Marianito and Generoso is concerned – Madera’s

guilt is proven beyond reasonable doubt. But Marianito’s and
Generoso’s guilt were not established. Their mere presence behind
Madera when the latter shot and killed Bana is not constitutive of their
guilt without any showing that they shared the criminal intent of
Madera. It must be shown that they had knowledge of the criminal
intention of the principal, which may be demonstrated by previous or
simultaneous acts which contributes to the commission of the offense as
aid thereto whether physical or moral. This was absent in the case at bar.
The Supreme Court lauded the Solicitor General for recommending the
acquittal of the two. The Supreme Court also emphasized that the
prosecutor’s finest hour is not when he wins a case with the conviction
of the accused. His finest hour is still when, overcoming the advocate’s
natural obsession for victory, he stands up before the Court and pleads
not for the conviction of the accused but for his acquittal. For indeed, his
noble task is to prosecute only the guilty and to protect the innocent.