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SECOND DIVISION

G.R. No. L-36020 October 30, 1979

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NAZARITO AQUINO, ROMEO CASIMINA and PEDRO CASIMINA, accused-appellants.

ABAD SANTOS, J.:

Pedro Casimina, his son, Romeo Casimina and Nazarito Aquino were accused of murder alleged to have been committed as follows:

That on or about November, 1970, in the afternoon, in Barrio Bangilan, Municipality of Kabacan, Province of Cotabato, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a gun, conspiring, confederating and mutually helping and aiding one another, with treachery and evident premeditation, and with deliberate intent to take the life of Benigno Pascua, suddenly, unexpectedly and treacherously, attack, assault and shoot the latter with said gun, hitting him in the left abdomen, thereby inflicting upon said Benigno Pascua mortal wound which immediately cause his death.

The Court of First Instance of Cotabato, Branch III, found them guilty and sentenced them thus:

WHEREFORE, and in view of all the foregoing, the Court hereby finds, each of the accused, Pedro Casimina, Romeo Casimina and Nazarito Aquino, guilty beyond reasonable doubt as co-principals in the crime of murder, and in accordance with Article 248 of the Revised Penal Code, in relation to paragraph 1 of Article 64 of the same Penal Code, there being neither mitigating nor aggravating circumstance, the Court hereby sentences each of the accused to each suffer the penalty of reclusion perpetua or life imprisonment, with all the accessory penalties provided by law. They are further sentenced to jointly and severally indemnify the heirs of the victim, Benigno Pascua, in the sum of P12,000.00 Philippine Currency in concept of moral and exemplary damages, would any subsidiary imprisonment in case of insolvency; and to pay the cost proportionately; that is, each of them should pay one-third (1/3) of the costs.

All three have appealed their conviction but in a resolution of November 27, 1978, we allowed the withdrawal of the appeal of Nazarito Aquino, upon his-own motion. Thus this decision concerns Pedro and Romeo Casimina only.chanroblesvirtualawlibrary chanrobles virtual law library

In the afternoon of November 4, 1970, Benigno Pascua, the deceased, accompanied by his eight-year old son Benigno, Jr. took part in a "pintakasi" at the farm of Perfecto Regoyal in Barrio Bangilan, Kabacan, Cotabato. A "pintakasi" is a customary farm undertaking whereby the barrio farm hands collectively plow the farm of another in consideration for an agreed share in the harvest.chanroblesvirtualawlibrary chanrobles virtual law library

The farmers were plowing a clearing, bounded on the west and south by cornstalks as tall as men of ordinary height. On the southern edge of the clearing, but before the cornfield were tall cogon grasses or talahib. A depression filled with water was situated at the western side of the clearing, about twenty meters from the cornfield to the south.chanroblesvirtualawlibrary chanrobles virtual law library

At about 3:00 o'clock, Benigno Pascua took his carabao to the depression and started to bathe it. Beside him was Martin Goleng, barely three meters away. Somewhere behind Benigno Pascua were Pacifico Narvas who was about forty meters away and Romulo Pascua, some thirty meters away. Meanwhile, Benigno, Jr. was busy cutting grasses inside the cornfield at the western side of the clearing, upon instruction of his father.chanroblesvirtualawlibrary chanrobles virtual law library

Suddenly, successive gunshots shattered the quiet of the countryside. Benigno Pascua was fired upon from the direction of the cornfield in the south. A bullet found its mark on his left abdomen and the penetrating wound caused his almost instantaneous death.chanroblesvirtualawlibrary chanrobles virtual law library

The police officers of Kabacan, who went to the scene in the evening, recovered three empty cartridge shells, said to have been fired from a .30 caliber Garand rifle. Based on their investigation, the police arrested Nazarito Aquino and Romeo Casimina the following morning. A charge for murder was filed against them and a certain "John Doe" in the Municipal Court of Kabacan. The murder charge was later amended upon the arrest of Pedro Casimina on November 15, 1970, including him as defendant. All three accused waived their right to the second stage of the preliminary investigation so the case was elevated to the Court of First Instance.chanroblesvirtualawlibrary chanrobles virtual law library

At the trial, Martin Goleng who at the time of the shooting was nearest to the victim, testified that he heard three gunshots but he was not able to ascertain the direction from where they fired, because he dropped to the ground upon hearing the first shot, and ran for his safety after the last shot.chanroblesvirtualawlibrary chanrobles virtual law library

Benigno Pascua, Jr. the eight-year old star witness of the prosecution testified in a different tone. It was his incriminating testimony corroborated by those of Pacifico Narvas and Romulo Pascua, younger brother of the deceased, ... resulted in the conviction by the trial court.chanroblesvirtualawlibrary chanrobles virtual law library

Benigno, Jr. testified that he went with his father to the "pintakasi" that fateful afternoon. He was cutting grasses in the cornfield, west of the clearing, when he heard six gunshots. He declared that "Manong Itong" referring to Nazarito Aquino and "Manong Pat-ti" referring to Romeo Casimina and a third person whom he did not recognize shot his father. He said that a long gun was used in the shooting.chanroblesvirtualawlibrary chanrobles virtual law library

The records include a sworn statement taken by Chief of Police Arellano Banaynal on November 4, 1970, which was purportedly signed by Benigno, Jr. It stated in substance that while Benigno, Jr. was gathering grasses inside the cornfield, he saw three persons aiming a gun at his father. "Itong Aquino" aimed and fired a gun at his father, once, and then fired at Boy Gadia and companions. "Itong Aquino" was accompanied by "Pat-ti-Casimina" and a third person whom he did not recognize.chanroblesvirtualawlibrary chanrobles virtual law library

Pacifico Narvas who was about forty meters away from the deceased testified in the. light of his sworn statement of November 16, 1970. He said that when he heard four gunshots, he hid behind his carabao. He was then facing the southern cornfield and he ascertained that the gunshots were fired from that direction After the firing, he heard somebody shout that .three men were running away from the southern cornfield. There upon he claimed a tree and saw the said three men. He recognized the two of them as Nazarito Aquino and Pedro Casimina from a distance of some eighty meters but he did not recognize the third person. He also saw a gun, as the three ran away.chanroblesvirtualawlibrary chanrobles virtual law library

Romulo Pascua who was about thirty meters away from the deceased who was his older brother, testified that he did not see the person or persons who shot his brother. But he saw three persons in the direction from where the shots were fired as they ran outside the adjacent cornfield to the south. Like Pacifico Narvas, he recognized only two of them, namely: Nazarito Aquino and Pedro Casimina but not the third one who turned out to be Romeo Casimina. He executed a sworn statement on November 16, 1970, substantially reciting the foregoing.chanroblesvirtualawlibrary chanrobles virtual law library

Pacifico Narvas and Romulo Pascua further testified that they had known the three accused for a long time because they were from the same barrio.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court found vendetta as the motive for the killing, on Pacifico Narvas' testimony that there had been a misunderstanding between the deceased Benigno Pascua on one hand, and the Casiminas and Aquino on the other. The misunderstanding, it is said, arose in connection with two separate criminal cases involving a son of Pedro Casimina Francisco Casimina and a certain Federico Aquino. In the first case, Francisco Casimina and Federico Aquino were charged and convicted for theft of large cattle (carabao) on a complaint brought by the deceased Benigno Pascua and Ricardo Pascua. The second case was for the murder of Ricardo Pascua, for which Francisco Casimina and Federico Aquino were also convicted. The carabao in the theft case belonged to the deceased Benigno Pascua. In the murder case, Ricardo Pascua, the victim, was a brother of Benigno.chanroblesvirtualawlibrary chanrobles virtual law library

This review hinges on the credibility of the prosecution's witnesses. The appellants impugn the trial court's reliance on the testimony of Benigno Pascua, Jr. particularly, on grounds of incompetency and unreliability; and, in giving credence to the testimonies of Pacifico Narvas and Romulo Pascua on ground of improbability of their account. They likewise assail the trial court's appreciation of motive against the accused. They maintain that the defense witnesses are more credible.chanroblesvirtualawlibrary chanrobles virtual law library

We find the appellants' exception to the competency and reliability of Benigno, Jr., well taken. Under the rules of Court, the competency of a child-witness to testify depends not only on age but also on intelligence, the capacity to receive correct impression of facts respecting which he is examined, or of relating them truly. [Rules of Court, Rule 130, Sec. 19 (c)], chanrobles virtual law library

The determination of whether child-witness has the required degree of intelligence, rests primarily with the trial court. The trial judge may resort to any examination which will tend to disclose the child-witness' capacity and intelligence as well as his understanding of the obligation of an oath under which lie testifies. As many of these matters cannot be photographed in the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that such decision was erroneous. (U.S. vs. Buncad, 25 Phil. 530).chanroblesvirtualawlibrary chanrobles virtual law library

However, a close and careful examination of the testimony of Benigno, Jr., does not show that at the time he testified, he could be deemed a child of average intelligence, i.e., capable of giving responsive answers to the peripheral questions or capable of recollecting occurrences and relating such recollections. He could not tell in what municipality, the barrio of Bangilan is, nor the name of his province. He said that he was in Grade 11, but he did not know the name of his teacher. It turned out that he was out of school, as he later testified. He could not tell when his father was shot. He said his father was still alive on Christmas (of 1970), when in fact, his father was shot the proceeding November. He did not know what All Saints Day is, nor the names of the months of the year.chanroblesvirtualawlibrary chanrobles virtual law library

When cross-examined in connection with his sworn statement which apparently formed the basis of his testimony, he denied having signed the same. The sworn statement was in the usual typewritten question-and-answer form bearing his alleged signature and dated November 4, 1970. He could not recall whether he was asked to sign the statement. According to him, he was taken by Police Chief Arellano Banaynal to the latter's office. But the police chief did not talk to him at all. He only saw Banaynal writing in longhand on a piece of paper, for about an hour. He slept at the house of the police chief that evening and several more times. lie could not say how many more times, but he said the police chief told him a lot of things during those times. When asked what the police chief had told him, he answered, he could not remember.chanroblesvirtualawlibrary chanrobles virtual law library

If there was anything elicited from the young Benigno and which he gave out in an apparently straightforward manner, it was his testimony that they (referring to Nazarito Aquino and Romeo Casimina and Pedro Casimina whom he did not recognize at the time) shot his father. But the truthfulness of this testimony had been placed in serious doubt in the cross examination so ably propounded by the appellants' counsel, thus:

ATTY. MASUKAT:

Q Now, you stated that you heard gunshots, is that correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q At the time you first heard the gunshots, you were busy cutting grasses?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q In what direction where you facing to when you healed the first shot ?chanrobles virtual law library

A I was facing south.chanroblesvirtualawlibrary chanrobles virtual law library

Q From the place where you were cutting grasses, could you see your father bathing your carabao?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Is it not a fact that in the place where you were cutting grasses were tall corn plants?chanrobles virtual law library

A Yes, there were high corn plants.chanroblesvirtualawlibrarychanrobles virtual law library

Q And it was inside the high corn plants where you were cutting grasses, is that correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Before you heard the fire gunfire, you did not notice the presence of persons aside from your father in the cornfeild, is that correct?chanrobles virtual law library

A None, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q In fact you only knew that there were persons inside the cornfeild at that time you first heard gunshot, is that also correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And because you heard the first gunshot, you sought cover on the ground? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q When you sought cover on the ground, your face was toward the ground, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You remained in that position all the time during the firing up to the last time you heard the gunfire, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And because you were lying flat on the ground you could not see from what direction the firing came from is that correct?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Much less you could not Identify the persons who made the firming because you were facing the ground?chanrobles virtual law library

A Yes,sir. (pp. 9-10, TSN, June 22, 1971)

The prosecution tried to salvage the testimony of Benigno, Jr., on the following re-direct examination:

FISCAL COSTELO: chanrobles virtual law library

Q You stated in the direct examination that you recognized Itong, Pat-ti and one companion who shot your father; in the cross you stated that when The shooting took place you lay flat on the ground, will you explain to the Court how you were able to Identify these persons that shot your father when you were then lying flat on the ground? chanrobles virtual law library

Court:

Reform the question. He was not able to Identify all. He Identified only two.

FISCAL COSTELO: chanrobles virtual law library

Q In the direct-examination you stated that Pat-ti and Itong shot your father and that they had one companion with the in the cross- -examination you said that you lay flat on the ground; now, will you explain how you were able to Identify Pat-ti and I tong as the per. sons who shot your father and that they had one companion? chanrobles virtual law library

A When there was already an explosion I already recognized them.chanroblesvirtualawlibrary chanrobles virtual law library

Q How were you able to recognize them? chanrobles virtual law library

A When they did not yet shoot and they were still standing I was able to recognize them already.chanroblesvirtualawlibrary chanrobles virtual law library

Q In the cross-examination you also stated that Chief Banaynal let you point to the accused, will you explain whether at that time you pointed to the accused you already told the police about the persons who you said shot your father? chanrobles virtual law library

A They are the ones, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What do you mean when you say "they are the ones?" chanrobles virtual law library

(No answer yet) chanrobles virtual law library

FISCAL COSTELO:

I reform that.

Q Who are the persons referred to by you when you said "they are the ones?" chanrobles virtual law library

A They are the ones, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q The point is when you pointed to Itong and Pat-ti as two of the persons who shot your father, have you told him before that they were the ones who shot your father? chanrobles virtual law library

ATTY. MASUKAT:

Vague, Your Honor.

COURT:

Sustained. (pp. 14-15, TSN, June 22, 1971)

But, still the prosecution failed to explain how Benigno, Jr. was able to see and recognize the assailants under the circumstances. He was cutting grasses inside the cornfield at the western side of the clearing. The assailants were inside the cornfield at the southern side. Thus, between them were clusters of fruit-bearing cornstalks with wide leaves as could be expected in fully grown cornstalks. The young Benigno could not have seen through the maze of cornstalks. In fact, when he heard the first shot, he said, he dropped to the ground, flat on his stomach and with his face close to the ground. There is therefore no basis in his claim in the re-direct examination that when there was an explosion he had already recognized the assailants of his father.chanroblesvirtualawlibrary chanrobles virtual law library

Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.chanroblesvirtualawlibrary chanrobles virtual law library

The young Benigno appears to have been coached on what to say by the chief of police. It does not appear that he had previously told the police chief that he saw the three accused shoot his father. What transpired in the evening he was investigated in the office of the chief of police, and when he slept at the latter's house, is self revealing:

ATTY. MASUKAT: (Defense) chanrobles virtual law library

Q Chief Banaynal picked you up from your house in Bangilan and took you to Kabacan in his office in the evening a day after the death of your fathers?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You proceeded to the same office in Kabacan that same night?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And on the same evening you were investigated by the chief of police of Kabacan?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Was that investigation reduced to writing?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Did you understand the contents of that statement you gave to Chief Banaynal when he investigated you that evening.chanroblesvirtualawlibrary chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Aside from you and Chief Banaynal, were there other persons in his office when he was investigating you?chanrobles virtual law library

A None, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You were only 2 with Chief Banaynal?chanrobles virtual law library

A Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q Your mother did not accompany you to the chief of police that evening? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Even your sister did not accompany you?chanrobles virtual law library

A No.chanroblesvirtualawlibrary chanrobles virtual law library

Q When you reached the office of the chief of police that evening, what did the chief of police do?chanrobles virtual law library

A He did not converse with me.chanroblesvirtualawlibrary chanrobles virtual law library

Q Have you seen Chief Banaynal writing or typing something a piece of paper?chanrobles virtual law library

A He was writing, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q While he was writing, was he asking questions to you or not?chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q How long had Chief Banaynal been writing? chanrobles virtual law library

A Long, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Do you know how long an hour is'? chanrobles virtual law library

A It was perhaps an hour.chanroblesvirtualawlibrarychanrobles virtual law library

Q During all the time that Chief Banaynal was writing, he was not asking you anything, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Writing with his hand or he was using typewriter? chanrobles virtual law library

A In longhand, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q After writing of almost an hour, what else did he do?chanrobles virtual law library

A No more, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Do you know how a t typewriter looks like? chanrobles virtual law library

A I know, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q From the place where you are, will you go outside and point to us how a typewriter looks'? chanrobles virtual law library

COURT:

It's all right. Anyway he said he knows. (pp. 10-11, TSN, June 22, 1971)

xxx xxx xxxchanrobles virtual law library

Q The first night when you slept in his house in Kabacan did you have a talk with him in connection with the case of your father?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What did Chief Banaynal tell you? chanrobles virtual law library

A I forgot already.chanroblesvirtualawlibrary chanrobles virtual law library

Q Is it not a fact that what you have stated here is what Chief Banaynal told you what to tell when you slept with him? chanrobles virtual law library

A Another, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q What was that another? chanrobles virtual law library

A What he told me were different ones.chanroblesvirtualawlibrary chanrobles virtual law library

Q What were those different, ones you are referring to? chanrobles virtual law library

A I forgot. (p. 14, TSN, June 22,1971)

And yet, he admitted that he was told by the police chief to point an accusing finger at Romeo Casimina and Nazarito Aquino during the confrontation on November 5, at the police chief's office:

ATTY. MASUKAT: chanrobles virtual law library

Q Did not Chief Banaynal tell you to point to Itong Aquino and Romeo Casimina alias Pat-ti ?chanrobles virtual law library

A He told me.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. MASUKAT:

That is all for the witness, Your Honor. (p. 14, TSN, June 22, 1971)

The point is even made clearer by the prosecution in the redirect examination:

FISCAL COSTELO: chanrobles virtual law library

Q In the cross-examination you also stated that Chief Banaynal let you point to the accused, will you explain whether at that time you pointed to the accused you already told the police about the persons who you said shot your father? chanrobles virtual law library

A They are the ones, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What do you mean when you say "they are the ones?"

(No answer yet)

FISCAL COSTELO:

I reform that.

Q Who are the persons referred to by you when you said "they are the ones?" chanrobles virtual law library

A They are the ones, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q The point is when you pointed to Itong and Pat-ti as two of the persons who shot your father, have you told him before that they were the ones who shot your father? chanrobles virtual law library

ATTY. MASUKAT:

Vague, Your Honor.

COURT:

Sustained.

FISCAL COSTELO: chanrobles virtual law library

Q When did the Chief of Police tell you to point to these persons? chanrobles virtual law library

A It has been along time.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where were they when you pointed to them? chanrobles virtual law library

COURT:

Reform the question.

FISCAL COSTELO: chanrobles virtual law library

Q Where were you told by the chief of police to point to the accused? chanrobles virtual law library

A I was at the door of the room, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What room was it? chanrobles virtual law library

A A room in the municipal building.chanroblesvirtualawlibrary chanrobles virtual law library

Q Were Pat-ti and Itong present when the chief of police told you?chanrobles virtual law library

A They were present.chanroblesvirtualawlibrary chanrobles virtual law library

Q How far were Itong and Pat-ti from you when the chief of police told you to point? chanrobles virtual law library

A From here to the bench. (Witness points to a distance of about 6 meters).chanroblesvirtualawlibrary chanrobles virtual law library

Q Did you point to Itong and Pat-ti as told by the chief of police? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Before pointing to Itong and Pat-ti were you asked before that by the chief of police as to who killed your father? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You said that you were investigated by Chief Banaynal, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q When Chief Banaynal asked you questions, did he ask you who killed your father? chanrobles virtual law library

A No, sir. (pp. 15-16, TSN, June 22, 1971)

This coincides with the testimony of Nazarito Aquino and Romeo Casimina on the said confrontation. Nazarito Aquino declared in his direct examination:

ATTY. MASUKAT: (Defense) chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q Now, when you were already inside the office of the Chief of Police, what, if any, did the Chief of Police do or ask you?chanrobles virtual law library

A Nothing, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q How about the son of the deceased Benigno Pascua, Jr., what did you observe, if any?chanrobles virtual law library

A I observed something.chanroblesvirtualawlibrarychanrobles virtual law library

Q What did you observed something? chanrobles virtual law library

A At that time, Chief Banaynal was holding the shoulders of Benigno Pascua, Jr., and they together went out; as soon as they reached the door of the office, Chief Banaynal asked Benigno Pascua who among us shot his father but the boy remained silent. Then the Chief of Police told the boy, "you talk," and again the Chief said, "talk! " chanrobles virtual law library

Q How many times did Chief of Police Banaynal tell Benigno Pascua, Jr. to talk?chanrobles virtual law library

A Four times, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q On the fourth time, did Benigno Pascua talk? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What did Benigno Pascua, Jr. tell the Chief of Police?chanrobles virtual law library

A After Chief Banaynal inquired from Benigno Pascua who killed his father, Benigno Pascua, Jr. answered "Aquino killed my father. " chanrobles virtual law library

COURT: chanrobles virtual law library

Make of record that when the witness was answering the Last question, he was pointing with his right hand extended.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. MASUKAT: chanrobles virtual law library

Q Before Benigno Pascua, Jr. uttered any word, and pointed to you, did you hear the Chief of Police tell anything to the son of the deceased Benigno Pascua, Jr.? chanrobles virtual law library

FISCAL COSTELO:

Leading, Your Honor.

COURT:

Reform.

ATTY. MASUKAT: chanrobles virtual law library

Q Before Benigno Pascua, Jr. utter any word, do you know if the Chief of Police said anything to Benigno Pascua, Jr.? chanrobles virtual law library

FISCAL COSTELO:

Still leading, Your Honor.

COURT:

Same resolution.

ATTY. MASUKAT: chanrobles virtual law library

Q What did the Chief of Police tell Benigno Pascua, Jr. before he pointed to you? chanrobles virtual law library

COURT:

No basis, reform the question.

Q Did the Chief of Police had any talk to Benigno Pascua, Jr. when they went out of his office? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q What did the Chief of Police tell Benigno Pascua, Jr. when they went out of your office? chanrobles virtual law library

A Chief Banaynal said: "the persons who killed your father are already here.chanroblesvirtualawlibrary chanrobles virtual law library

Q What else did the Chief of Police tell Benigno Pascua, Jr. if any aside from that? chanrobles virtual law library

A "Do not be scared if you point to them." chanrobles virtual law library

Q Aside from that, what else did the Chief of Police tell Benigno Pascua, Jr.? chanrobles virtual law library

A Those are the only statements.chanroblesvirtualawlibrary chanrobles virtual law library

Q And it was only after the Chief of Police made that assurance to Benigno Pascua, Jr., that Benigno Pasma, Jr. pointed to you, is that what you mean? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q And it was only after the third time asking Benigno Pascua, Jr. who killed your father that he pointed to you? chanrobles virtual law library

COURT:

There was nothing stated about the third time. Reform the question.

ATTY. MASUKAT: chanrobles virtual law library

Q On the fourth time that the Chief of Police asked Benigno Pascua, Jr. who killed his father, that was the time that Benigno Pascua pointed to you, is that correct? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q In what particular place in the office of the Chief of Police did Chief Banaynal bring Benigno Pascua, Jr.? chanrobles virtual law library

A Inside his office, sir. (pp. 16-17, TSN, January 11, 1972)

Romeo Casimina testified that

ATTY. MASUKAT: (Defense) chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q After the boy was taken to your front by chief Banaynal, what else happened?chanrobles virtual law library

A Chief Banaynal told the boy that we were the ones who shot his father.chanroblesvirtualawlibrary chanrobles virtual law library

Q In what dialect did chief Banaynal told the boy that you were the ones who shot his father?chanrobles virtual law library

A Tagalog, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q How many times did chief Banaynal told Benigno Pascua, Jr. that you were the ones who killed his father? chanrobles virtual law library

A Four consecutive times.chanroblesvirtualawlibrarychanrobles virtual law library

Q After chief Banaynal told Benigno Pascua, Jr. that you were the ones who shot his father, what did the boy do?chanrobles virtual law library

A The boy was not saying anything. The boy was silent.chanroblesvirtualawlibrarychanrobles virtual law library

Q When the boy was silent, did you observe what Chief Banaynal did to the boy? chanrobles virtual law library

A I know, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q Please inform the Hon. Court what Chief Banaynal asked the boy to do?chanrobles virtual law library

A He forced the boy to point at Nazarito Aquino as the person who shot his father.chanroblesvirtualawlibrary chanrobles virtual law library

Q Did not chief Banaynal also force the boy to point to you as one of those who shot his father?chanrobles virtual law library

A No, sir. It was only Nazarito Aquino.chanroblesvirtualawlibrary chanrobles virtual law library

Q How did chief Banaynal force Benigno Pascua, Jr. to point to Nazarito Aquino as the person who shot his father? chanrobles virtual law library

A He said: "Come on. You point to him as the one who shot your father. "chanrobles virtual law library

Q How many times did chief Banaynal utter that word to Benigno Pascua, Jr. before he finally pointed to Nazarito Aquino? chanrobles virtual law library

A Four consecutive times.chanroblesvirtualawlibrary chanrobles virtual law library

Q And it was only after the 4th time that Benigno Pascua Jr. at the instance of the chief of police, pointed to the accused Nazarito Aquino, is that what you mean? chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You were not included as one of those pointed to by Benigno Pascua, Jr. as having shot his father? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, after Benigno Pascua, Jr. was forced to point to Nazarito Aquino by the chief of police as the one who shot his father, what else did the chief of police told the boy?chanrobles virtual law library

A Chief Banaynal and the boy went back to his office. (pp. 67, TSN, March 22, 1972)

Benigno even denied having signed the sworn statement wherein he stated that he saw the accused shoot his father:

ATTY. MASUKAT chanrobles virtual law library

Q Do you remember if Chief Banaynal had made you sign anything?chanrobles virtual law library

A Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q That something Chief Banaynal asked you to sign, was it typewritten or written in longhand? chanrobles virtual law library

A It was typewritten in ... (withdrawn) In longhand, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q You are very sure of that?chanrobles virtual law library

A I know, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Aside from that written in longhand which Chief Banaynal made you sign, have you not signed a typewritten paper? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q Now, you said you signed something written in longhand, were the contents of that read to you? chanrobles virtual law library

A No, sir, chanrobles virtual law library

Q It was not interpreted to you before you affixed your signature therein? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q It was not interp ... (withdrawn) There is here found in the records of this case a sworn statement taken in the office of the chief of police on November 4, 1970 and above the words Benigno Pascua, Jr. is a signature, do you recognize that signature? chanrobles virtual law library

A No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. MASUKAT: chanrobles virtual law library

I request that this sworn statement dated Nov. 4, 1970 be marked as Exhibit "l " for the defense, found on page 8 of the records.chanroblesvirtualawlibrary chanrobles virtual law library

COURT:

Mark it.

ATTY. MASUKAT: chanrobles virtual law library

Q When you said you cannot recognize this signature, you mean this is not your signature?chanrobles virtual law library

A Not my signature.chanroblesvirtualawlibrary chanrobles virtual law library

ATTY. MASUKAT: chanrobles virtual law library

I request that this signature appearing above the typewritten words Benigno Pascua, Jr. be marked as Exhibit "l-A".chanroblesvirtualawlibrary chanrobles virtual law library

COURT:

Mark it. (pp. 12-13, TSN June 22, 1971)

Significantly, it is noted that while the sworn statement stated that Benigno Jr. was ten years old, he however said during the trial that he was eight years old. Likewise, Benigno purportedly stated therein, that when presented to him he could recognize and Identify the third person whom he saw with Nazarito Aquino and Romeo Casimina. But, he failed to Identify Pedro Casimina when the latter was presented to him in court.chanroblesvirtualawlibrary chanrobles virtual law library

Apparently, the prosecution tried to make up for the failure of young Benigno to Identify Pedro Casimina by presenting the other witnesses Pacifico Narvas and Romulo Pascua, who both testified that they recognized Nazarito Aquino and Pedro Casimina Thus, Pacifico Narvas and Romulo Pascua claimed that they recognized Pedro Casimina and Nazarito Aquino at a distance of some eighty meters while the latter were running away from the southern cornfield, with only their backs visible to them. Under normal visibility conditions, recognition at a distance of eighty or even one hundred meters is probable, if the person whose back is towards the observer is sufficiently familiar to the observer and where the latter's line of sight towards such person is unobstructed.chanroblesvirtualawlibrary chanrobles virtual law library

This is not however the case, it appearing that these witnesses were on the clearing and the alleged assailants were running on the place beyond the clusters of fully grown cornstalks to the south of the clearing. The maze of tall and leafy cornstalks must have impeded or obstructed the view of these witnesses positioned on the clearing, so as to prevent them from seeing, much more from recognizing the persons running beyond the cornstalks.chanroblesvirtualawlibrary chanrobles virtual law library

In fact, Pacifico Narvas had to say during the trial that he had to climb a tree in order to see those persons running beyond the southern cornfield. He testified that he did so, when he heard one of the farmers on the clearing shout that the assailants were running outside the cornfield. It, of course, taxes credulity how one of those farmers came to know that the culprits were running outside the cornfield when such farmer was himself on the same plane with the others on the clearing, at the other side of the cornfield. Surprisingly, the prosecution did not present that farmer who shouted that the culprits were running outside the cornfield. By itself, Narvas' act of climbing a tree after the last gun report, purposely to observe the fleeing assailants runs counter to usual human conduct and normal reaction in times of danger and stress. A person who is near another who has been shot will ordinarily scamper to safety and will not expose himself to the assailants.chanroblesvirtualawlibrary chanrobles virtual law library

On his part, Romulo Pascua testified on the unusual. It will be noted that he categorically stated that he did not see the person or persons who shot his brother. Yet he claimed that the accused were running outside the southern cornfield. Romulo betrayed himself on cross-examination when he stated that while he saw them running, lie did not however see their entire backs. But, Still he was able to recognize them, because, according to him, he already knew their appearances.chanroblesvirtualawlibrary chanrobles virtual law library

If, indeed, these witnesses had re-organized and Identified the assailants, they would have reported The shooting and revealed the Identity of the culprits, to the police authorities, at the earliest possible opportunity, as could ordinarily be expected of witnesses to a fatal shooting. But, not one of them did so.chanroblesvirtualawlibrary chanrobles virtual law library

The shooting was reported to the police by a certain Sulpicio Umiten, a public school teacher in Kabacan. When the police authorities arrived at the scene, Pacifico and Romulo claimed that they were among those questioned by the police. Yet none of them singled out and named the accused. 'They attempted to explain their inability to disclose the Identity of assailants, by claiming that they were afraid because it was already getting dark, which explanation is too crude to be convincing. Romulo added a lame excuse, that questions asked of him did not extend to the Identity of the culprits. Pacifico and Romulo testified that two days after the shooting they were investigated, and that they separately executed sworn statements wherein they named the accused. But surprisingly, their alleged sworn statements are both dated November 16, 1970, or twelve days after the shooting.chanroblesvirtualawlibrary chanrobles virtual law library

In fact Romeo Casimina and Nazarito Aquino were arrested in the morning of November 5, would any warrant of arrest. The same is true with Pedro Casimina who was arrested on November 15. Apparently, they were arrested on mere suspicion gathered by the police from the onlookers who could not name the assailants and who merely theorized that because of a previous grudge between the accused and the deceased, the former must have been the assailants.chanroblesvirtualawlibrary chanrobles virtual law library

On the main, all that the prosecution had proved was the fact of death of Benigno Pascua, but it failed to prove by outright, convincing and conclusive evidence that such death was caused by the accused. The evidence for the prosecution does not even show that attempts were made to recover the Garand rifle allegedly used in the shooting, or that any of the accused was in possession of a rifle at the time of the shooting. It does not even appear that formal and thorough investigation was made of the accused, more particularly of Pedro Casimina who appears to have been hastily included in the murder charge.chanroblesvirtualawlibrary chanrobles virtual law library

The imputation of motive on the part of the accused has not made the case any stronger for the prosecution. The trial court's conclusion thereon is not warranted by its findings. In the theft case, the carabao stolen, belonged to the Pascuas, and in the murder case, the victim was a brother of Benigno Pascua, the victim in this case. Should there be an ax to grind, as between the Pascuas and the accused, the same would reasonably be found on the part of the Pascuas, considering that in both cases they were the aggrieved parties.chanroblesvirtualawlibrary chanrobles virtual law library

Assuming arguendo that the accused had a very strong motive to eliminate Benigno Pascua, such motive cannot take the place of proof beyond reasonable doubt, sufficient to overthrow the presumption of innocence.chanroblesvirtualawlibrary chanrobles virtual law library

Proof beyond reasonable doubt is the mainstay of our accusatorial system of criminal justice. As reiterated in People vs. Basuel, No. L-2815, October 31, 1972, 42 SCRA 207, only by proof beyond reasonable doubt x"" requires moral certainty a "certainty that convinces and satisfies the reason and conscience of those who are to act upon it" may the presumption of innocence be overcome.chanroblesvirtualawlibrary chanrobles virtual law library

By reasonable doubt is meant "doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest easy upon the certainty of guilt." (People vs. Alipio, No. L-17214, June 12, 1965, 14 SCRA 297) chanrobles virtual law library

Our minds cannot rest easy upon the certainty of guilt of the accused in the light of the evidence for the prosecution.chanroblesvirtualawlibrary chanrobles virtual law library

The accused offered the defense of alibi which by reason of the proximity of the place where they were supposed to be to the place where the shooting occurred is indeed a weak defense. But the weakness of the defense does not relieve the prosecution of the required burden of proof.chanroblesvirtualawlibrarychanrobles virtual law library

The accused need not prove their innocence, because that is presumed. In People vs. Fraga, (109 Phil. 241, 250) this Court through Mr. Justice J.B.L. Reyes, spoke thus: "An accused cannot be convicted on the basis of evidence which independently of his alibi is weak, uncorroborated and inconclusive. The rule that alibi must be satisfactorily proven was never intended to change the burden of proof in criminal cases; otherwise we will see the absurdity of the accused being put in a more difficult position where the prosecution's evidence is vague and weak than where it is strong." chanrobles virtual law library

WHEREFORE, we find that the guilt of Pedro and Romeo Casimina has not been proved beyond reasonable doubt and accordingly the sentence against them is hereby reverse, with costs de oficio.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

 chanrobles virtual law library

AQUINO, J., concurring:chanrobles virtual law library

I concur in the view that the evidence is not sufficient for the conviction of Romeo Casimina Hence, he should be acquitted.chanroblesvirtualawlibrary chanrobles virtual law library

I dissent as to the exoneration of Romeo's father, Pedro Casimina who is also the father of Francisco Casimina and is a relative of Nazarito Aquino. Francisco was convicted of having stolen the carabao of the deceased Benigno Pascua and of having murdered Ricardo Pascua, a brother of Benigno.chanroblesvirtualawlibrary chanrobles virtual law library

Eyewitnesses Pacifico Narvas and Romulo Pascua Identified Pedro Casimina as one of the three assailants who shot Benigno. Pedro's complicity in the killing of Benigno was established to a moral certainty.

AQUINO, J., concurring:

I concur in the view that the evidence is not sufficient for the conviction of Romeo Casimina Hence, he should be acquitted.chanrobles virtual law library

I dissent as to the exoneration of Romeo's father, Pedro Casimina who is also the father of Francisco Casimina and is a relative of Nazarito Aquino. Francisco was convicted of having stolen the carabao of the deceased Benigno Pascua and of having murdered Ricardo Pascua, a brother of Benigno.chanrobles virtual law library

Eyewitnesses Pacifico Narvas and Romulo Pascua Identified Pedro Casimina as one of the three assailants who shot Benigno. Pedro's complicity in the killing of Benigno was established to a moral certainty.