SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
122934
January 05, 2001
-versus-
ANGEL PRECIADOS
(At
Large), ARTURO ENAD,
EMIGDIO
VILLAMOR,
LEONCIO ALGABRE
AND FLORIANO
ALGABRE
ALIAS "LOLOY",
Accused.
ARTURO ENAD,
Accused-Appellant.
chanroblesvirtualawlibrary
D E C I S I O N
QUISUMBING,
J.:chanroblesvirtuallawlibrary
Accused-appellant Arturo
Enad[1]
assails the decision rendered by the Regional Trial Court of Tagbilaran
City, Branch 1, in two consolidated cases, Criminal Case No. 7887 for
murder
and Criminal Case No. 7888 for frustrated murder. It convicted
and
sentenced him to reclusion perpetua in the first case and to a prison
terms
of six (6) years and one (1) day of prision mayor, as minimum to twelve
(12) years and one (1) day of reclusion temporal, as maximum, in the
second
case.
In Criminal Case No.
7887, the Office of the Provincial Prosecutor of Bohol charged Angel
Preciados,
Arturo Enad, Emigdio Villamor, Leoncio Algabre, and Floriano Algabre
alias
"Loloy" with murder allegedly committed as follows:chanrobles virtuallaw libraryred
That on or about the
12th to the 13th day of May 1992, in the municipality of Sagbayan,
province
of Bohol, Philippines and within the jurisdiction of this Honorable
Court,
the above-named accused, conspiring, confederating and mutually helping
with (sic) one another, with intent to kill and without justifiable
cause,
did then and there, willfully, unlawfully, and feloniously pour poison
into the mouth of one Primo Hilbero whereby causing the victim’s
untimely
death; to the damage and prejudice of the heirs of the deceased in the
amount to be proved during the trial.cralaw:red
Acts committed contrary
to the provisions of Article 248 of the Revised Penal Code, as amended,
with the aggravating circumstances of (1) treachery, the victim being
unaware
and unsuspecting and (2) abuse of superior strength, two of the accused
being armed with deadly weapons which they used in intimidating,
threatening
and forcing the victim to drink the poison.[2]
In Criminal Case No.
7888, the same persons were charged with frustrated murder. The charge
sheet reads:
That on or about the
12th to the 13th day of May, 1992, in the municipality of Sagbayan,
province
of Bohol, Philippines, and within the jurisdiction of this Honorable
Court,
the above-named accused, conspiring, confederating and mutually helping
with (sic) one another, with intent to kill and without justifiable
cause,
did then and there willfully, unlawfully and feloniously pour poison
into
the mouth of one Antonio Hilbero thereby inflicting serious injuries on
the victim’s body; thus, the accused having performed in said manner
all
the acts of execution which would have produced the crime of Murder as
a consequence, but which nevertheless did not produce it by reason of a
cause independent of their will, that is, by the timely medical
attendance
and treatment rendered the damage and prejudice of the said offended
party
in the amount to be proved during the trial (sic).chanrobles virtuallaw libraryred
Acts committed contrary
to the provisions of Article 248 in relation to Articles 6 and 50 of
the
Revised Penal Code, as amended, with the aggravating circumstances of
(1)
treachery, the victim being unaware and unsuspecting and (2) abuse of
superior
of strength two of the accused being armed with deadly weapon which
they
to used in intimidating, threatening and forcing the victim to drink
the
poison.[3]
The informations were
both dated July 20, 1992 but the cases were tried before different
salas.
Branch 4 of the Regional Trial Court of Tagbilaran City, tried Criminal
Case No. 7887, while Branch 3 tried Criminal Case No. 7888.cralaw:red
On August 26, 1992,
the accused in Criminal Case No. 7888 were ordered arrested. But
the police failed to apprehend any of the accused. Preciados and the
Algebres
were reported to have gone into hiding in Mindanao, while Enad and
Villamor
went to Cebu City. It was only on July 20, 1993, when appellant
Arturo
Enad was arrested. Arraigned in Criminal Case No. 7887, he
pleaded
not guilty. He waived pre-trial and the case was set for trial.cralaw:red
On September 13, 1993,
Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City,
inhibited
himself from Criminal Case No. 7887, since the accused were the
political
leaders of Mayor Arthur Melicor-Añana, his cousin, while the
victims
were supporters of the mayor’s political rival, Narzal B. Ermac.cralaw:red
On February 14, 1994,
Criminal Case No. 7888 was revived and jointly tried with Criminal Case
No. 7887 in Branch 1, RTC of Tagbilaran City. Arraigned in Criminal
Case
No. 7888 on February 15, 1994, appellant entered a plea of not
guilty.
Thereafter, Criminal Cases Nos. 7887 and 7888 were jointly tried,
without
prejudice to the separate arraignment and trial of the other accused
who
continued to evade arrest.chanrobles virtuallaw libraryred
The facts of the case,
culled from the prosecution’s presentation, are as follows:
Appellant and Antonio
Hilbero,[4]
the victim in Criminal Case No. 7888, are second cousins. Both are
residents
of Ubujan, Sagbayan, Bohol. Appellant is also a cousin of Primo
Hilbero’s
mother-in-law. Primo Hilbero is the victim in Criminal Case No.
7887.cralaw:red
During the May 11, 1992
elections, appellant and Antonio supported rival mayoralty candidates
of
Sagbayan. Appellant was a supporter and poll watcher of Arthur
Añana,
while Antonio, a barangay councilman of Ubujan, was a partisan of
Narzal
Ermac. Appellant’s co-accused were also identified with
Añana
who won.cralaw:red
At around 11:00 p.m.
of May 12, 1992, Antonio with his common law wife and their two
children,
his brother, Primo and his wife, Helen with their three children,
Antonio’s
mother, Dominga, and another brother, Severino were at the second floor
of the old rice mill at Ubujan. Except for Helen, the clan had
retired
for the night. She was about to go to sleep when she noticed Antonio go
downstairs. Minutes later, her husband Primo, followed him.
Then she heard someone utter, "Don’t move." Alarmed, she rose
from
her mat and peeped through a two-inch hole in the floor.[5]
The ground floor was illuminated by moonlight. She saw appellant
holding
a hand grenade while his other arm was locked in a stranglehold around
the neck of Antonio who knelt on the floor.[6]
Nearby stood Angel Preciados with a gun pointed at Antonio.[7]
She then heard Emigdio Villamor say "Don’t move so that your family
will
not die." She saw the latter forcing Primo to swallow an object.[8]
The other accused held her husband to prevent him from struggling.
Shocked,
Helen then soundlessly cried and embraced her children. Shortly
afterwards,
Helen’s mother-in-law, Dominga, was awakened by the barking of the
family
dog. Dominga went downstairs where she saw Primo lifeless on the
floor, reeking of poison.[9]
Antonio was nowhere to be found. Dominga rushed upstairs and woke
up Severino, all the while shouting for help. Minutes later, the
barangay captain and some neighbors responded to her shouts for
assistance.
They found Primo dead on the floor. Informed that Antonio was missing,
they searched the immediate surroundings for him but to no avail.[10]chanrobles virtuallaw libraryred
Early in the morning
of May 13, 1992, the search for Antonio was resumed. He was finally
found
by his uncle, Simeon Degamo, holding on to rock in a natural well, some
300 meters away from the rice mill. A rope was thrown to him and
he was pulled out from the well. Noticing that he smelled of some
poisonous
chemical, his rescuers made him drink coconut milk.[11]
He was weak and appeared on the verge of death and brought to the
hospital
at Clarin, Bohol for emergency treatment.cralaw:red
The next day, prosecution
witness Zosimo Viva,[12]
a defeated municipal councilor candidate in the same slate of Ermac,
Antonio’s
common law wife, and two police investigators transferred Antonio to
the
Gov. Celestino Gallares Memorial Hospital in Tagbilaran City.[13]
According to prosecution witness Dr. Mayda[14]
Reyes who admitted Antonio to the hospital, Antonio told her that the
latter
was forced to drink a certain liquid, which smelled like insecticide.[15]
Another physician, Dr. Maria Luisa Tage, who attended to Antonio
diagnosed,
"Poisoning, Etiology not determined, Brief reactive psychosis."[16]
Since Antonio appeared
to be dying, prosecution witness PO3 Leonardo Inoc, a police
investigator,
took his "ante-mortem" statement[17]
in which he named the aforementioned accused as the persons responsible
for poisoning him and dropping him in the well.[18]
Meanwhile, Ermac asked
the National Bureau of Investigation (NBI) to conduct an investigation.[19]
The toxicological examination of Primo’s body revealed the presence of
methamidophos, the active ingredient of the insecticide "Tamaron" in
Primo’s
organs.[20]
The NBI also recovered two empty bottles, at the scene of the incident.
Chemistry tests on them revealed that the "Hoechst" bottle was positive
for deltamethrine, an insecticide, while the other bottle revealed
traces
of methamidophos.[21]chanrobles virtuallaw libraryred
Appellant denied any
involvement in the poisoning incident. He claimed an alibi. He
said
he spent the whole night of May 11, 1992, in the municipal hall of
Sagbayan,
as a watcher for the party of Mayor Añana. He went home
early
morning of May 12, 1992 and spent the whole day repairing his pigpens
even
if he had not slept the previous night. At around seven o’clock
P.M.
his wife and he went to the house of his co-accused Angel Preciados to
attend the birthday party of the latter’s son.[22]
Afterwards, they returned home and went to sleep.[23]
He woke up at around 9:00 A.M. and learned about the incident. He went
to the old rice mill to find out more about the poisoning incident and
saw the Hilberos. When he asked Helen what happened, she said she
knew nothing about the death of her husband.[24]
Later that day, he returned to Cebu City where he worked as a crane
operator.
He could not think of any reason why he would be suspected for
committing
a crime, as he was on good terms with the victims.[25]
The defense offered
a different version of the poisoning incident. According to the
defense,
Antonio and Primo agreed to commit suicide by taking poison.[26]
It presented Antonio’s affidavit dated February 28, 1994,[27]
where he recanted his story in his affidavit of May 22, 1992.[28]
Antonio testified that he and Primo decided to commit suicide by
drinking
poison to prevent defeated candidates Ermac and Viva from harming their
families. Antonio refused to follow the orders of Viva to kill
the
political leaders of Mayor Añana, including the appellant. Thus,
Antonio said, he and Primo feared for the lives of their
relatives.
After Primo and he drank poison, Primo immediately died. When he
did not succumb right away, Antonio wrote a suicide note and tried to
drown
himself in the well.[29]
After his rescue, Ermac and Viva took him into custody and bought him
to
Mindanao, allegedly for his safety.[30]
The two, however, threatened to kill him and made him falsely charge
the
appellant with murder and frustrated murder.[31]
Antonio totally repudiated his "ante-mortem" statement and his earlier
affidavit charging the accused with murder and frustrated murder.chanrobles virtuallaw libraryred
Testifying for the defense,
P/Col. Benjamin Absalon, of the Bohol Provincial Command of the
Philippine
National Police, testified that the police investigation revealed that
Primo’s death by poison was not due to foul play. He declared that they
did not finish their investigation because Antonio disappeared from the
hospital before they could interview him.[32]
To rebut Antonio’s testimony,
Dr. Mayda Reyes was called anew to confirm what Antonio had told her,
that
he was forced to drink poison by several men.[33]
SPO1 Leonardo Inoc testified again that he took Antonio’s "ante-mortem"
statement.[34]
Apolinario Libranza, barangay captain of Ubujan, Sagbayan was presented
to refute Antonio’s claims regarding Zosimo Viva.[35]
Antonio’s mother, Dominga, testified that her son was not afraid of
either
Viva or Ermac[36]
and affirmed the truthfulness of Helen’s testimony.[37]
In sur-rebuttal, Antonio
maintained the veracity of his suicide account.cralaw:red
Finding the prosecution’s
version more credible, the trial court on January 2, 1995, convicted
appellant
of the crimes charged in Criminal Cases Nos. 7887 and 7888. It
concluded:chanrobles virtuallaw libraryred
PREMISES CONSIDERED,
in Criminal Case No. 7887 the Court finds the accused Arturo Enad
GUILTY
of the crime of Murder punished under Article 248 of the Revised Penal
Code and hereby sentences him to suffer an imprisonment of RECLUSION
PERPETUA
with the accessories of the law and to pay the costs.cralaw:red
The accused Arturo Enad
is further ordered to indemnify the surviving spouse of the deceased
Primo
Hilbiro (sic) in the amount of P50,000.00 representing indemnity and
P50,000.00
representing moral and exemplary damages. In both instances without
subsidiary
imprisonment in case of insolvency.cralaw:red
In Criminal Case No.
7888, the Court finds the accused Arturo Enad GUILTY of the crime of
Frustrated
Murder under Article 248 in relation with (sic) Articles 6 and 50 of
the
Revised Penal Code, as amended and hereby sentences him to suffer an
Indeterminate
Sentence from SIX (6) YEARS and ONE (1) DAY, the Minimum of the Minimum
Period of Prision Mayor, as Minimum, to TWELVE (12) YEARS and ONE (1)
DAY,
the Minimum of the Minimum Period of Reclusion Temporal, as Maximum,
with
the accessories of the law and to pay the cost.cralaw:red
The Court makes no pronouncement
as to indemnity and damages for the Court viewed the retraction of the
complainant Antonio Hilbiro (sic) of his previous testimony, as a
waiver
of indemnity.cralaw:red
It appearing that the
accused Arturo Enad has undergone preventive imprisonment in Criminal
Cases
Nos. 7887 and 7888 he is entitled to the full time of his preventive
imprisonment
to be deducted from his term of sentences (sic) if he has executed a
waiver
otherwise he will only be entitled to 4/5 of the time of his preventive
imprisonment to be deducted from his term of sentence (sic) if he has
not
executed a waiver.cralaw:red
SO ORDERED.[38]
On July 25, 1995, appellant
filed his notice of appeal to this Court. On November 20, 1996,
the
Office of Legal Aid of the U.P. College of Law entered its appearance
as
counsel.chanrobles virtuallaw libraryred
Before us, appellant
poses the following questions for resolution:
WHETHER OR NOT THE
TRIAL
COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONTRADICTORY AND
IMPROBABLE
TESTIMONIES OF THE WITNESSES OF THE PROSECUTION.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN ADMITTING AND GIVING WEIGHT TO THE DOCUMENTARY EVIDENCE
PRESENTED BY THE PROSECUTION.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN NOT HOLDING THAT THE PROSECUTION FAILED TO PROVE THE
GUILT
OF THE ACCUSED BEYOND REASONABLE DOUBT AND IN DISMISSING THE DEFENSE OF
THE ACCUSED.
In sum, appellant raises
the following issues: First, Did the trial court err in giving credence
to the testimony of alleged eyewitness Helen Hilbero? Second, Did
the lower court err in relying on "dying statement" of Antonio Hilbero?
Third, Did the prosecution evidence successfully overcome the
presumption
of innocence in favor of the accused?chanrobles virtuallaw libraryred
The first issue deals
with the credibility of prosecution witness Helen Hilbero.
Appellant
argues that the testimony of the sole prosecution eyewitness, Helen
Hilbero,
is doubtful. He points out that it was odd that despite witnessing her
husband murdered and her brother-in-law poisoned, Helen did not make a
statement to the police on what she witnessed; that while the police
took
the sworn statement of Dominga, the mother of Primo and Antonio, they
did
not take the statement of the widow, who allegedly saw everything; and
that even after meeting appellant face to face on the morning of May
13,
1992, no confrontation occurred between appellant and her.
Furthermore,
the prosecution did not rebut appellant’s testimony that Helen admitted
to appellant that she did not know what happened to her husband and
brother-in-law.
The prosecution suggests that Helen’s testimony was a mere concoction
of
the political opponents of Mayor Añana and that Helen was
coached
on her testimony when it became apparent to Ermac and Viva that Antonio
would not testify the way they wanted.cralaw:red
The Office of the Solicitor
General, for its part, contends that there is nothing unnatural in
Helen’s
failure to immediately disclose what she knew. The failure to reveal
the
identities of the perpetrators should not impair her credibility since
there is no set standards of human behavior when one is confronted with
a strange, striking, or frightful experience. Moreover, she had her
reasons
to keep what she knew to herself. The accused were her neighbors
and they could easily cause her and her family harm. Thus, the trial
court,
the OSG said, committed no error in relying on her testimony to convict
appellant.cralaw:red
Where the credibility
of a witness is an issue, the established rule is that great respect is
accorded to the evaluation of the credibility of witnesses by the trial
court. It is in the best position to determine the issue of credibility
of a witness, having heard his testimony and observed his deportment
and
manner of testifying.[39]
But, where there is a showing that the trial court overlooked material
and relevant facts, which could affect the outcome of a case,[40]
the Court will not hesitate to set aside the lower court’s findings and
assessments regarding the credibility of witnesses.chanrobles virtuallaw libraryred
In giving full faith
and credence to the testimonies of the prosecution witnesses, the trial
court explained:
The findings of the
court relative to the credibility of the witnesses militate in favor of
the prosecution witnesses (citations omitted). The court took into
consideration
‘the most important factor(s) (of) each witness, his manner and
behavior
on the witness stand and the general characteristics, tone, tenor and
inherent
probability of his statement (citations omitted)’ for in most
instances‘
the demeanor of a witness on the witness stand is often a better
evidence
of his veracity than the answer he gives (citations omitted)’ and ‘it
is
perfectly reasonable to believe the testimony of a witness with respect
to other parts. Everytime when witnesses are found to have deliberately
falsified some material particulars it is not required that the whole
of
their uncorroborated testimony be rejected but some portions thereof
deemed
worthy of belief may be credited.(emphasis ours).[41]
On record the lower
court heavily relied on the testimony of Helen. However, it did
not
make any categorical finding as to her credibility or the veracity of
her
account.chanrobles virtuallaw libraryred
We find Helen’s testimony
riddled with inconsistencies and improbabilities which could affect the
outcome of this case. Helen testified that upon hearing a
different
voice downstairs, she peeped through a two-inch hole in the floor and
saw,
with the moonlight cascading through the windows of the old mill, the
accused
forcibly make her husband, Primo, swallow poison.[42]
On direct examination, she stated, she heard the words - Don’t move.[43]
Under cross-examination, she said what she heard was - Don’t move so
that
the grenade will not be exploded. As the cross-examination progressed,
however, she declared that what she actually heard was - Don’t move
otherwise
your family will be included. She initially admitted that the first
words
were uttered by a voice unknown to her. On further grilling by
the
defense, she claimed she recognized the voice as appellant’s.
Relentless
cross-examination, however, yielded an admission that it was the voice
of accused Villamor she heard first.[44]
The identification of an accused through his voice is acceptable,
particularly
if the witness knows the accused personally.[45]
But the identification must be categorical and certain. We observed
that
the witness changed her version a number of times. A startling or
frightful
experience creates an indelible impression in the mind such that the
experience
can be recalled vividly.[46]
Where the witness, however, fails to remain consistent on important
details,
such as the identity of the person whose voice she heard, a suspicion
is
created that "material particulars" in her testimony had indeed been
altered.
If an eyewitness contradicts himself on a vital question, the element
of
reasonable doubt is injected and cannot be lightly disregarded.[47]
Helen’s testimony contained
contradictory statements. In one instance she said she witnessed
the fatal poisoning of her husband by the accused because the mill was
lit by moonlight. In another instance she said the mill was dark and
unlit.[48]
On further cross-examination she claimed that she witnessed the events
because of the bright moonlight.[49]
First, she said the moonlight was very bright[50]
then later she said the moon was not very full.[51]
The defense showed that during that night, five nights before its
fullness,
the moon was in its first quarter[52]
and it was not as bright as a full moon. Note also that Helen’s view of
the event was limited because she was only peeping through a small
hole.
Under these conditions, Helen’s flip-flopping testimony created serious
doubts regarding its veracity and credibility. Thus her testimony
concerning the destruction of the bamboo slats in one window of the
mill
invites serious doubt. The mill had two windows covered with bamboo
slats.
To enter the mill through the windows, the bamboo slats must be
destroyed.
Yet, Helen did not hear the sound of the bamboo slats being destroyed,
which was the only way the intruders could have entered.chanrobles virtuallaw libraryred
Her testimony regarding
the murder of her husband, Primo, is less than credible. She said
that while Primo struggled not to imbibe the poison, he did not utter a
sound. According to her, Primo could not utter a sound as his
neck
was "clipped", or "headlocked" as the trial court puts it.[53]
There was no showing, however, that the victim’s mouth was muffled to
prevent
him from shouting for help. From her testimony, she could have
easily
asked for help. It will be recalled that barangay captain and
their
neighbors quickly responded to her mother-in-law’s shout for help after
seeing Primo’s corpse.[54]
Helen’s account, that her husband violently struggled against his
murderers
yet soundlessly gulped down the poison they made him drink, is
unnatural.
It evokes disbelief. Evidence to be believed must not only proceed from
the mouth of a credible witness but it must also be credible by itself,
and must conform to the common experience and observation of mankind.[55]
As a rule, an eyewitness
testimony cannot be disregarded on account of the delay in reporting
the
event, so long as the delay is justified.[56]
In this case, Helen kept silent for almost two years. She had no
affidavit during the preliminary investigation.[57]
It was only at the trial that she came out to say she witnessed her
husband’s
murder. She did not explain why. Her long silence is out of
character and appears inconsistent with her behavior in immediately
reporting
to the police and the barangay captain an incident when an unidentified
man accosted her on the whereabouts of Antonio.[58]
Additionally, on direct
testimony, she declared that she knew that Antonio was found in a hole
filled with water on the morning of May 13, 1992.[59]
Yet, on cross-examination, she declared that she did not know where his
rescuers found Antonio that morning.[60]
Such contradictory statements tend to erode Helen’s credibility as a
prosecution
witness and raise serious doubt concerning the prosecution’s evidence.cralaw:red
On the second issue,
appellant submits that the trial court erred when it admitted and gave
much weight to the probative value of the "ante mortem" statement of
Antonio.[61]
Appellant contends that the statement can neither be considered as
dying
declaration under Rule 130, Sec. 37[62]
nor part of the res gestae under Rule 130, Section 42[63]
of the Rules of Court. It is inadmissible for being
hearsay.
Furthermore, he avers it was error for the trial court to give weight
to
the first affidavit of Antonio,[64]
since Antonio repudiated the same, stating that its contents were
false.
According to appellant, Antonio claimed said affidavit was given under
duress.cralaw:red
The Solicitor General,
for its part, argues that Antonio’s actions during and immediately
after
the incident were completely inconsistent with those of a person who
allegedly
wanted to commit suicide. Hence, his retraction should be looked at
with
jaundiced eye, following our ruling in People v. Junio, 237 SCRA 826
(1994),
where we held that retractions are generally unreliable and looked upon
with considerable disfavor.chanrobles virtuallaw libraryred
A dying declaration
is the statement which refers to the cause and surrounding
circumstances
of the declarant’s death, made under the consciousness of an impending
death."[65]
It is admissible in evidence as an exception to the hearsay rule[66]
because of necessity and trustworthiness. Necessity, because the
declarant’s
death makes it impossible for him to take the witness stand[67]
and trustworthiness, for when a person is at the point of death, every
motive for falsehood is silenced and the mind is induced by the most
powerful
consideration to speak the truth.[68]
The requisites for the admissibility of a dying declaration are: (1)
the
death is imminent and the declarant is conscious of that fact; (2) the
declaration refers to the cause and surrounding circumstances of such
death;
(3) the declaration relates to facts which the victim is competent to
testify;
(4) the declarant thereafter dies; and (5) the declaration is offered
in
a criminal case wherein the declarant’s death is the subject of inquiry.[69]
In the present case,
the foregoing requisites were not met. A dying declaration is
essentially
hearsay, because one person is testifying on what another person
stated.
This is because the declarant can no longer be presented in court to
identify
the document or confirm the statement, but more important, to be
confronted
with said statement by the accused and be cross-examined on its
contents.[70]
It was patently incorrect for the trial court to have allowed
prosecution
witness PO3 Leonardo Inoc to testify on Antonio’s so-called "dying
declaration"
because Antonio was alive and later even testified in court.cralaw:red
But was the purported
ante-mortem statement part of the res gestae? Where a victim’s
statement
may not be admissible as an ante mortem declaration, it may nonetheless
be considered as part of the res gestae, if made immediately after a
startling
occurrence in relation to the circumstances thereof and when the victim
did not have time to contrive a falsehood.[71]
For res gestae to be allowed as an exception to the hearsay rule, the
following
requisites must be satisfied: (1) that the principal act or res gestae
be a startling occurrence; (2) the statement is spontaneous or was made
before the declarant had time to contrive or devise, and the statement
is made during the occurrence or immediately prior or subsequent
thereto;
and (3) the statement made must concern the occurrence in question and
its immediately attending circumstances.[72]
In this case, the element
of spontaneity is lacking in the alleged ante-mortem statement.
Antonio’s
statement was taken by PO3 Inoc at around 3:00 o’clock P.M., May 14,
1992
or some thirty-nine (39) hours after the incident. Thirty-nine hours is
too long a time to be considered subsequent immediately (stress
supplied)
to the startling occurrence. Even as contemplated by the rules,
statements
given a day after the incident in answer to questions propounded by an
investigator cannot be considered part of the res gestae.[73]
Furthermore, the testimony of the declarant, that the statement was
made
under threats and with coaching from losing candidates Ermac and Viva
in
order to get even with the winning candidate, Mayor Añana, is
uncontroverted.[74]chanrobles virtuallaw libraryred
Dying declarations and
statements which form part of the res gestae are exceptions to the
hearsay
rule, thus they must be strictly but reasonably construed and must
extend
only insofar as their language fairly warrants.[75]
Thus, doubts should be resolved in favor of applying the hearsay rule,
rather than the exceptions. Under said rule, Antonio’s so-called
ante-mortem
statement should not have been admitted in evidence, for it is neither
a dying declaration nor a part of res gestae.cralaw:red
Next we consider whether
the trial court could properly rely on Antonio’s affidavit dated May
22,
1994 naming the persons responsible for the poisoning incident,
notwithstanding
his subsequent repudiation of said affidavit. As a rule,
retractions
are generally unreliable and are looked upon with considerable disfavor
by the courts[76]
because of the probability that recantation may later on be itself
repudiated.[77]
Furthermore, retractions can easily be obtained from witnesses through
intimidation or for monetary consideration,[78]
and a mere retraction does not necessarily negate an earlier
declaration.[79]
When faced with a situation where a witness recants an earlier
statement,
courts do not automatically exclude the original testimony. The
original
declaration is compared with the new statement, to determine which
should
be believed.[80]
In this case, the trial
court rejected Antonio’s retraction of his affidavit dated May 22,
1992,
for being contrary to human experience and inherently unworthy of
belief.
The trial court cited, by way of illustration, the portion of the
affidavit
where Antonio claimed that after he and Primo agreed to commit suicide
and drinking a bottle of insecticide, Antonio wrote a farewell letter
to
his barangay-mates. We note, however, that Antonio’s second affidavit
should
have been rejected together with the first affidavit. Unless an
affiant
himself takes the witness stand to affirm the averments in his
affidavit,
the affidavit must be excluded from the judicial proceeding for being
inadmissible
hearsay.[81]
In this case the affiant expressly refused to confirm the contents of
his
first affidavit. Instead, he testified that said affidavit, Exhibit "E"
was prepared under grave threats and severe pressure from Ermac and
Viva.[82]
His earlier affidavit’s contents were hearsay, hence inadmissible in
evidence.cralaw:red
Noted further that Exhibit
"E" and its sub-markings were offered, to prove that Antonio testified
in detail before NBI Agent Atty. Amador Robeniol about what happened to
him and his brother Primo in the hands of the five accused.[83]
Even if said Exhibit was admissible, all that it proves is that Antonio
testified and executed an affidavit before the NBI. It does not prove
the
truthfulness of the allegations made and contained therein.chanrobles virtuallaw libraryred
Coming now to the third
issue: has the prosecution succeeded in proving appellant’s guilt
beyond
reasonable doubt?
The records show that
the only direct evidence linking appellant to the crimes charged and
for
which he was convicted are the direct testimony of eyewitness Helen
Hilbero
and the contents of Exhibit "E." But as discussed earlier, neither can
be given much probative value. As to the testimonies of the other
prosecution
witnesses, we find them insufficient to convict appellant as none of
them
had any personal knowledge of facts that would directly link appellant
to the offenses charged. Even if these witnesses testified in a
straightforward
and categorical manner, their testimonies contained insufficient
evidence
to establish appellant’s guilt beyond reasonable doubt.cralaw:red
Appellant’s defense
of denial in the present case is inherently weak.[84]
Denial, if unsubstantiated by clear and convincing evidence, is a
negative
and self-serving evidence undeserving of any weight in law.[85]
But such weakness does not excuse the prosecution from presenting the
adequate
quantum of proof of the crime charged. The guilt of the accused
must
be proved beyond reasonable doubt. And the prosecution’s evidence
must stand or fall on its own weight. It cannot rely on the
weakness
of the defense. In the instant case, the prosecution failed to prove
the
guilt of appellant with moral certainty. The testimony of its single
purported
eyewitness, while positive, was less than credible. It did not
meet
the test such testimony of a lone witness to sustain a judgment of
conviction,
must be both positive and credible.[86]
In our view, the burden of proof required for conviction of appellant
has
not been adequately discharged by the prosecution.cralaw:red
WHEREFORE, the decision
of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal
Cases
Nos. 7887 and 7888, finding appellant Arturo Enad guilty of murder and
frustrated murder is hereby REVERSED and SET ASIDE for insufficiency of
the evidence to convict him beyond reasonable doubt. Appellant is
ACQUITTED
and ordered RELEASED from confinement immediately unless he is held for
another lawful cause.chanrobles virtuallaw libraryred
SO ORDERED.cralaw:red
Bellosillo, J., (Chairman),
Mendoza, Buena, and De Leon, Jr., JJ., concur.
____________________________
Endnotes:
[1]
Sometimes spelled "Inad" in the records. Cases against his
co-accused
who are at large are still pending trial.
[2]
Records, Criminal Case No. 7887, p. 1.
[3]
Records, Criminal Case No. 7888, pp. 1-2.
[4]
Also spelled as "Hilbiro", "Helbiro" or "Helbero" in the records.
[5]
TSN, March 3, 1994, pp. 7-9.chanrobles virtuallaw libraryred
[6]
TSN, March 4, 1994, pp. 9-10.
[7]
TSN, March 7, 1994, p.20.
[8]
TSN, April 26, 1994, p. 3-11; TSN, March 7, 1994, p. 20.
[9]
TSN, May 16, 1994, p. 4; TSN, March 7, 1994, pp. 7-9; TSN, March 3,
1994,
pp. 12-14.
[10]
TSN, March 3, 1994, pp. 13-14.
[11]
TSN, May 18, 1994, pp. 7-9; TSN, May 16, 1994, pp. 5-6.
[12]
Also referred to as "Semmie" or "Simmy" Viva in the records.
[13]
TSN, March 11, 1994, p. 7.
[14]
Also spelled as "Maida" or "Mayida" in the records.
[15]
TSN, February 24, 1994, pp. 7-8.
[16]
Records, Criminal Case No. 7887, p. 20.
[17]
TSN, February 23, 1994, pp. 3-7.
[18]
Exhibit "J", Folder of Exhibits, p. 9.
[19]
TSN, April 26, 1994, p. 7; TSN, March 1, 1994, pp. 4-5, 11-12.
[20]
Exhibit "A", Folder of Exhibits, p.1; TSN, February 15, 1994, pp. 7-8.
[21]
Exhibit "B", Folder of Exhibits, p. 2.
[22]
TSN, August 25, 1994, pp. 4-6; See also TSN, August 31, 1994, p.2; See
also Exhibits "7" & "8," Folder of Exhibits, p. 37.
[23]
TSN, August 25, 1994, p. 6 only.
[24]
TSN, August 26, 1994, p.4.chanrobles virtuallaw libraryred
[25]
TSN, August 25, 1994, pp. 8-10.
[26]
TSN, February 24, 1994, p. 19.
[27]
Exhibit "5," Records, Criminal Case No. 7887, p. 95.
[28]
Exhibit "E," Records, Criminal Case No. 7887, pp. 16-18.
[29]
TSN, June 20, 1994, pp. 11-24.
[30]
TSN, June 22, 1994, pp. 15-16.
[31]
TSN, June 22, 1994, pp. 8-9.
[32]
TSN, September 19, 1994, pp. 10-11; Folder of Exhibits, p. 48.
[33]
TSN, October 27, 1994, p.7.
[34]
TSN, October 28, 1994, p 3.
[35]
TSN, November 7, 1994, pp. 6-7, 11.
[36]
TSN, November 11, 1994, p.3
[37]
TSN, November 11, 1994, p. 3, 10.
[38]
Rollo, p. 55.chanrobles virtuallaw libraryred
[39]
People v. Castillo, et al., G.R. No. 130188, April 27, 2000, p. 11
citing
People v. Lapay, 298 SCRA 62 (1998); People v. Pantorilla and Dahan,
G.R.
No. 122739, January 19, 2000, p. 7; People v. Magpantay, 284 SCRA 96
(1998);
and People v. Erese, 281 SCRA 316 (1997).
[40]
People v. Tanoy, G.R. No. 115692, May 12, 2000, p. 6.
[41]
Rollo, p. 155.chanrobles virtuallaw libraryred
[42]
TSN, March 7, 1994, p. 20.
[43]
TSN, March 3, 1994, p. 9. See also TSN, March 4, 1994, p. 27.
[44]
TSN, March 7, 1994, pp. 16-23.
[45]
People v. Avillano, 269 SCRA 553, 561 (1997).
[46]
People v.De Guia, 280 SCRA 141, 155 (1997).
[47]
People v. Manambit, 271 SCRA 344, 379 (1997).
[48]
TSN, March 4, 1994, p. 17.
[49]
TSN, March 7, 1994, p. 11.
[50]
TSN, March 4, 1994, p. 17.
[51]
TSN, March 7, 1994, pp. 11-12.
[52]
Exhibit "1", Folder of Exhibits, p. 30.
[53]
TSN, March 7, 1994, pp. 14-22.
[54]
TSN, March 7, 1994, p. 34.
[55]
People v. Parazo, 272 SCRA 512, 521 (1997); People v. Manambit, 271
SCRA
344, 376 (1997).
[56]
People v. Lusa, 288 SCRA 296, 305 (1998); People v. Viovicente, 286
SCRA
1, 8 (1998); People v. Villamor, 284 SCRA 184, 193 (1998).
[57]
TSN, March 4, 1994. p.5-7.chanrobles virtuallaw libraryred
[58]
TSN, March 7, 1994, pp. 37-42.
[59]
TSN, March 3, 1994, p. 14-16.
[60]
TSN, March 7, 1994, p. 36.
[61]
Folder of Exhibits, p. 9.
[62]
- SEC. 37. Dying Declaration. The declaration of a dying person,
made under the consciousness of an impending death, may be received in
any case wherein his death is the subject of inquiry, as evidence of
the
cause and surrounding circumstances of such death.
[63]
- SEC. 42. Part of the res gestae. Statements made a person while
a startling occurrence is taking place or immediately prior or
subsequent
thereto with respect to the circumstances thereof may be given in
evidence
as part of the res gestae. So, also, statements accompanying an
equivocal
act material tot he issue, and giving it a legal significance may be
received
as part of the res gestae.
[64]
Records, Criminal Case No. 1887, pp. 16-18.chanrobles virtuallaw libraryred
[65]
F. B. Moreno, Phil. Law Dictionary (3rd Ed. 1988) 300, citing People v.
Lugtu, 108 SCRA 89 (1981).
[66]
"SEC. 36. Testimony generally confined to personal knowledge; hearsay
excluded.
" A witness can testify only to those facts which he knows of his
personal
knowledge; that is, which are derived from his own perception except as
otherwise provided in these rules."
[67]
People v. Bautista, 278 SCRA 613, 623 (1997); People v. Sion, 277 SCRA
127 (1997).
[68]
People v. Amaca, 277 SCRA 215, 223 (1997).
[69]
People v. Bergante, 286 SCRA 629, 638 (1998); People v. Viovicente,
supra;
People v. Bautista, 278 SCRA 613 (1997); People v. Amaca, 277 SCRA 215
(1997); People v. Padao, 267 SCRA 64 (1997).
[70]
Rules of Court, Rule 115, Sec. 1. Rights of accused at the trial. In
all
criminal prosecutions, the accused shall be entitled:chanroblesvirtuallawlibrary
x
x x
(f)
To confront and cross-examine the witnesses against him at the trial.
Either
party may utilize as part of its evidence the testimony of a witness
who
is deceased, out of or cannot with due diligence be found in the
Philippines,
unavailable or otherwise unable to testify, given in another case or
proceeding,
judicial or administrative, involving the same parties and subject
matter;
the adverse party having had the opportunity to cross-examine him.
[71]
People v. Bocatcat, Sr., 188 SCRA 175, 185 (1990).
[72]
People v. Cariquez and Franco, 315 SCRA 247, 261 (1999); People v.
Queliza,
279 SCRA 145 (1997); People v. Esquilona, 248 SCRA 139 (1995); People
v.
Peralta, 237 SCRA 218 (1994); People v. Tolentino, 218 SCRA 337 (1993);
People v. Sanchez, 213 SCRA 70 (1992).
[73]
People v. Navarro, 297 SCRA 331, 350 (1998).
[74]
TSN, June 22, 1994, pp. 7-12.chanrobles virtuallaw libraryred
[75]
Ruben E. Agpalo, Statutory Construction (2nd Ed. 1990) 222.
[76]
People v. Junio, 237 SCRA 826, 834 (1994); People v. Logronio, 214 SCRA
519, 531 (1992) citing People v. del Pilar, 188 SCRA 37 (1990), People
v. Aldaguer, 184 SCRa 1 (1990); People v. Navasca, 76 SCRA 70 (1977),
and
People v. Domenden, 6 SCRA 343 (1962).
[77]
People v. Navarro, supra, at 348, citing People v. Soria, 262 SCRA 739
(1996), People v. De Leon, 245 SCRA 538 (1995), and People v. Liwag,
225
SCRA 46 (1993).
[78]
People v. Bibat, 290 SCRA 27, 39 (1998) citing People v. de Leon,
245 SCRA 538 (1995).
[79]
People v. Ballabare, 264 SCRA 350, 361 (1996).
[80]
People v. Peralta, 237 SCRA 218, 224 (1994); People v. Mindac, 216 SCRA
558 (1992); People v. Clamor, 198 SCRA 642 (1991); Reano v. Court of
Appeals,
165 SCRA 525 (1988).
[81]
People v. Crispin, G.R. No. 128360, March 2, 2000, p. 10 citing People
v. Silvestre, 307 SCRA 68 (1999); People v. Manhayod, Jr., 290 SCRA 257
(1998).
[82]
TSN, June 22, 1994, pp. 13-15.
[83]
TSN, June 20, 1994, p. 3.
[84]
People v. Juan and Juan, G.R. Nos. 100718-19, January 20, 2000, p. 19.
[85]
People v. Fajardo, et al., 315 SCRA 283, 293 (1999).chanrobles virtuallaw libraryred
[86]
People v. Reñola, 308 SCRA 145, 152 (1998). |