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THIRD DIVISION

G.R. No. 94785 July 1, 1992

THE PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. ELPIDIO A. LOSTE, alias "Pedio", Defendant-Appellant.chanrobles virtual law library

ROMERO, J.:

The night of the town fiesta of Maydolong, Eastern Samar, on August 15, 1980, was marred by the death of Ventura Elardo, 72-year old farmer, due to severe hemorrhage caused by deep and fatal wounds in his right nipple inflicted by accused-appellant Elpidio Loste who was found guilty or the crime of murder and sentenced to suffer reclusion perpetua. ¹chanrobles virtual law library

The prosecution evidence shows that on August 15, 1980, Gregorio Busa, 63 years of age and farmer, was a guest of his brother-in-law, Fausto Sanchez at Maydolong, Eastern Samar. ² At about 8:00 o'clock in the evening, Busa walked home to Barangay Maybocog, Maydolong, Eastern Samar, with a flashlight on hand to illuminate his way. It was at Sitio Malabon, near the house of one Rafael Busa where he noticed his barriomate, Ventura Elardo, walking behind him about one meter away, and together, they proceeded to go home. After a half-hour walk, Elardo stopped to answer the call of nature. Busa continued to move on when he heard a"lagatak," slashing sound. He beamed his flashlight in the direction where the sound came from. He was petrified when he saw Elpidio Loste hacking Elardo with a sharp-edged bolo. ³ He then chased Busa but gave up after a distance of about 40 meters. ⁴ The beam of light from his flashlight enabled Busa to witness the stabbing of Elardo by Loste, who was knows to him for years.chanroblesvirtualawlibrary chanrobles virtual law library

That same evening, Teofisto Busa, 28, farmer of Maybocog, Eastern Samar, together with Juana Borac and Carmen Cafe, were on their way home. ⁵ At the left side of the road going to Maybocog, they detected a fallen body and with a torchlight, recognized it to be that of their barriomate, Ventura Elardo. Out of fear, they froze where they stood. Immediately thereafter, Teofisto Busa informed Bernardo Elardo, Ventura's son about the gruesome scene.chanroblesvirtualawlibrarychanrobles virtual law library

Bernardo Elardo hired his neighbor's vehicle for P500.00 and together with his sister and Teofisto, they rushed their father to Borongan Eastern Samar Provincial Hospital. While hovering between life and death, Ventura told Bernardo that he was hacked by Elpidio Loste. ⁶chanrobles virtual law library

As a result of the mortal wounds inflicted by Loste, Ventura finally succumbed at 1:00 o'clock in the morning of August 16, 1980.chanroblesvirtualawlibrarychanrobles virtual law library

Dr. Reinerio Zamora who examined and treated the deceased, certified that the deceased sustained two (2) wounds: wound no. 1 located in the right nipple cutting the lower ribs; and wound no. 2 located two (2) inches below wound no. 1 and testified that these wounds might have been caused by a sharp-bladed instrument like a bolo. ⁷chanrobles virtual law library

The defense had a different story to tell.chanroblesvirtualawlibrarychanrobles virtual law library

On August 15, 1980, Elpidio Loste, 34, married, farmer, and resident of Maydolong, Eastern Samar, visited his cousin, Prudencio Loste at Maydolong where they had a tuba drinking spree. 8

It was already 7:30 in the evening when they went home very drunk. While he was approximately seven (7) meters away from his abode, he was suddenly pursued by Leo Altar, Romeo Capada, and Ernesto Dalino who were yelling and challenging him to a fight. ⁹ For fear that these men would make good their threat, he screamed thrice for his wife, Norma Loste, who readily came to his succor. Once inside his house, the men remained in the yard and stoned his home, ¹⁰ prompting his to go down but was timely prevented by Norma, Felisima Hugo and Engracia Obina. Having imbibed too much tuba, he fell asleep unmindful of the stone-throwing and the people in his home who stayed up the whole night to watch over him lest he might again go down. ¹¹ chanrobles virtual law library

The following day, while Norma was fetching water near Malabon bridge, the news about the death of Ventura Elardo broke the tranquility of the morning. It was while she and her family were taking breakfast that Patrolman Billy Cantado came and brought her husband, Elpidio Loste, to Maydolong Municipal Building for investigation regarding the heinous killing of Elardo.chanroblesvirtualawlibrarychanrobles virtual law library

Subsequently an information was filed stating:

That on or about the 15th day of August, 1980 at about 10:00 o'clock in the evening, along the National Road at Malabon, Maydolong, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with treachery and evident premeditation and with intent to kill one, Ventura Elardo did, then and there, wilfully, unlawfully and feloniously, attack, assault, stab and wound the latter with the use of a bolo, which the accused provided himself for the purpose, thereby inflicting wounds on the body of said Ventura Elardo and the said wounds caused the death of the latter.chanroblesvirtualawlibrary chanrobles virtual law library

CONTRARY TO LAW with the aggravating circumstance of nighttime which was sought for to better accomplish the commission of the offense. ¹²chanrobles virtual law library

After trial, the court found Elpidio Loste guilty and imposed the penalty adverted to earlier. Hence, this appeal.chanroblesvirtualawlibrary chanrobles virtual law library

Only two (2) errors were assigned in the appellant's brief:

1. The lower court erred in convicting Elpidio A. Loste of the crime of murder without sufficient proof showing beyond reasonable doubt the guilt of said accused.chanroblesvirtualawlibrary chanrobles virtual law library

2. The lower court erred in holding that the crime committed is murder.

Decisive in this controversy is the credibility of prosecution witness Gregorio Busa.chanroblesvirtualawlibrary chanrobles virtual law library

Elpidio Loste brands as untruthful prosecution witness Busa's testimony that he was with the deceased when the macabre hacking took place because the latter had caught up with him on the way home. He avers that there was no prior agreement between Busa and the deceased to meet somewhere or near the house of one Rafael Busa and the way home. As such, the supposed rendezvous of Busa and the deceased never took place. Additionally, the deceased could not have overtaken Busa on the highway since being nine years older, he walk slower.chanroblesvirtualawlibrary chanrobles virtual law library

We cannot accept Loste's allegations. The meeting between Busa and Elardo by fluke of fate cannot be rejected simply because Elardo, being older is slower than Busa, as argued by Loste. By Busa's account, he walked home very slowly which explains said encounter. ¹³ chanrobles virtual law library

Besides, we cannot underestimate Elardo's physical strength simply because he was in his seventies. Farmers, as a general rule, are stronger than those who live and work in the urban areas. Accustomed to tilling the fields and loading and unloading sacks of palay, they retain their health and stamina even in their old age.chanroblesvirtualawlibrary chanrobles virtual law library

This was bolstered by Elardo's son who testified that his father was strong and not physically infirm, as Loste would have us believe. ¹⁴ chanrobles virtual law library

But Loste insists that on a moonless night such as when the alleged killing happened, it would have been impossible for Busa to see, much less recognize, the assailant. Based on Busa's testimony, he might have seen only the back of the perpetrator and not his face since the said perpetrator immediately chased him. ¹⁵ chanrobles virtual law library

It may be true that there was no moon when Elardo was killed, which was probably why Loste was so confident that his identity was safe, but by the light from his flashlight, Busa was able to clearly and positively identify the assailant. His testimony during the direct and cross examinations showed his indubitable identification of Loste, thus:

Q. What did you do when you heard that slashing sound? chanrobles virtual law library

A. I turned back and focused the beam of my flashlight.chanroblesvirtualawlibrary chanrobles virtual law library

Q. What did you see when you focused your flashlight? chanrobles virtual law library

A. I saw Elpidio Loste.

xxx xxx xxx

Q. What was in his possession if any?

xxx xxx xxx

A. He was holding a bolo.chanroblesvirtualawlibrary chanrobles virtual law library

Q. And then what did Elpidio Loste do after you focused your flashlight?

xxx xxx xxx

A. He started to chase me. ¹⁶

In the barrios, like Maydolong, people generally know one another well. Hence, Busa could not have erred in identifying Loste that night as Elardo's killer.chanroblesvirtualawlibrary chanrobles virtual law library

If indeed Loste was innocent of the crime charged, he could have acted the role of a good Samaritan and come to the succor of the fallen Elardo, or brought him to the nearest hospital, or reported the incident to the victim's wife. But he did none of these things. Instead he chased Busa forthwith with his bolo and gave up only after running a distance of 40 meters which puts his claim of innocence in doubt.chanroblesvirtualawlibrary chanrobles virtual law library

Interestingly, Busa executed an affidavit on February 4, 1991, repudiating his testimony against Loste during the trial of the case.chanroblesvirtualawlibrary chanrobles virtual law library

We look with disfavor upon Busa's alleged retraction. It is too late in the day for his recantation without portraying himself as a liar. In the first place, the records show that it was executed ten years after he testified in court. In the second place, it was never presented in court. And in the third place, recantation made by a prosecution witness after conviction of the accused is unreliable and deserves scant consideration. ¹⁷chanrobles virtual law library

Be that as it may, Busa's testimony remains unshaken. Bernardo Elardo, son of the deceased, corroborated Busa's testimony when he testified in court that before his father died, he (Ventura) pinpointed Loste as his attacker.chanroblesvirtualawlibrary chanrobles virtual law library

We agree with the trial court that Elardo's statement made an hour before his death and right after the hacking incident bears all the earmarks, either of a dying declaration, or part of the res gestae which is an exception to the hearsay rule. Loste implicitly recognized this fact when he failed to impugn its admissibility either before the trial or in this appeal. ¹⁸ chanrobles virtual law library

The defense of alibi interposed by Loste miserably fails.chanroblesvirtualawlibrary chanrobles virtual law library

In a plethora of cases, we have consistently declared that for the defense of alibi to prosper, it must be established by clear and convincing evidence that the accused was at some other place for such a period of time as to negate his presence at the time and place of the crime when it was committed. ¹⁹ Loste himself admitted that he was in Maydolong, Eastern Samar when the killing happened. In a fit of drunkenness, he took the same road earlier taken by Busa and the deceased in going home to Maybocong at around 7:30 in the evening. Between the hours 8:00 and 9:00 o'clock in the evening, Elardo was hacked. Clearly then, it was physically possible for Loste to be at the time and place of the crime when it was committed.chanroblesvirtualawlibrary chanrobles virtual law library

The alibi proferred by Loste, his wife, auntie, and neighbor is hardly credible. With their testimonies, they were spinning webs of lies and prevarications.chanroblesvirtualawlibrary chanrobles virtual law library

The following are their testimonies.chanroblesvirtualawlibrary chanrobles virtual law library

Engracia Obina, 40, married, farmer, resident of Barrio Malabon, Maydolong, Eastern Samar, and neighbor of Loste testified that at around 7:00 o'clock of August 15, 1980, she ran to Loste's house to help prevent him from going downstairs. ²⁰ She remained there till the following day when "the coast was clear," so to speak.chanroblesvirtualawlibrary chanrobles virtual law library

On the other hand, Felisima Hugo, 47, housekeeper, resident of Barangay Barobo, Llorente, Eastern Samar, and auntie of Loste narrated that Engracia went to the house of Loste at around 12:00 o'clock only after the stone-throwing incident had stopped and a policeman had come. ²¹ chanrobles virtual law library

Both Engracia and Felisima testified that Loste slept in the sala while they kept their vigil over him for fear he might confront the hostile group downstairs. On the other hand, Loste testified that all the while, he slept in his bedroom. ²² chanrobles virtual law library

Not much credence should be given to the testimonies of Felisima and Engracia as they are Loste's auntie and neighbor, respectively, and are naturally biased in his favor. As for Norma's testimony that Loste slept the whole night and never woke up till the following day, it is undeniably tainted with bias for it springs from the natural desire of a wife to bail out her husband from criminal liability even to the extent of lying.chanroblesvirtualawlibrary chanrobles virtual law library

During the direct examination, Loste said that three men incessantly stoned his house with rocks. It taxes credulity that Loste would sleep the whole night while his home was being pelted with rocks. Ironically, he did not file any charges against these men.chanroblesvirtualawlibrary chanrobles virtual law library

After a careful study of the case, we find the evidence presented by the prosecution, upon which the trial court in turn based its judgment of conviction, to be overwhelmingly against the pretended innocence and alibi of Loste.chanroblesvirtualawlibrarychanrobles virtual law library

However, we disagree that the element of evident premeditation was present as to qualify the offense committed to murder. The prosecution had failed to establish how and why the crime was planned. ²³ chanrobles virtual law library

But treachery was, indeed, present. Under the cover of darkness, Loste suddenly and unexpectedly sprang from the darkness and attacked Elardo with a deadly weapon. Unarmed and unsuspecting, Elardo was hacked twice in his right nipple. The wounds sustained by Elardo eloquently bespeak of his unpreparedness to defend himself. He was not able to parry with his hands before the fatal blows were delivered. Obviously, Loste employed means, methods or forms in the execution of the felony which insures its commission without risk to himself arising from any defense which the offended party might take. ²⁴ chanrobles virtual law library

Again, the trial court erroneously appreciated the generic aggravating circumstance of nighttime because it is already absorbed by the circumstance of treachery or alevosia.chanroblesvirtualawlibrary chanrobles virtual law library

Finally, we note that the lower court's judgment was penned by a judge who did not hear the case. However, we find no cogent reason to reverse Judge Auxencio C. Dacuycuy's judgment. As earlier stated, the verdict was fully substantiated and supported by evidence. ²⁵ chanrobles virtual law library

WHEREFORE, the Decision of the court a quo date January 12, 1989 is hereby AFFIRMED with the modification that the civil liability of accused-appellant is increased to P50,000.00 in line with current jurisprudence.

Endnotes:

1 Regional Trial Court, 8th Judicial Region, Branch 1, Borongan, Eastern Samar, Judge Auxencio C. Dacuycuy, Presiding.chanrobles virtual law library

2 T.S.N., August 4, 1981, p. 14.chanrobles virtual law library

3 Id., pp. 17, 30-31.chanrobles virtual law library

4 Id., p. 18.chanrobles virtual law library

5 T.S.N., August 10, 1981, pp. 62-66.chanrobles virtual law library

6 T.S.N., August 10, 1981, pp. 54-55.chanrobles virtual law library

7 T.S.N., June 29, 1981, pp. 2-6.chanrobles virtual law library

8 T.S.N., May 28, 1992, p. 144.chanrobles virtual law library

9 T.S.N., March 29, 1982, p. 3.chanrobles virtual law library

10 Id., p. 4.chanrobles virtual law library

11 Id., p. 7.chanrobles virtual law library

12 Regional Trial Court, 8th Judicial Region, Branch 1, Borongan, Eastern Samar, First Assistant Provincial Fiscal, Almario A. Montes.chanrobles virtual law library

13 T.S.N., August 4, 1981.chanrobles virtual law library

14 Id.chanrobles virtual law library

15 T.S.N., August 24, 1981.chanrobles virtual law library

16 Id., August 4, 1981, pp. 17-18.chanrobles virtual law library

17 People v. Torino, Nos. L-18767 and L-18789-90, May 30, 1964, 11 SCRA 287.chanrobles virtual law library

18 People v. Mison, G.R. No. 63480, February 26, 1991, 194 SCRA 432.chanrobles virtual law library

19 People v. Noriel Fule, G.R. No. 83027, February 28, 1992.chanrobles virtual law library

20 T.S.N., December 7, 1981, pp. 83-87.chanrobles virtual law library

21 T.S.N., February 25, 1982, pp. 133-137.chanrobles virtual law library

22 T.S.N., May 28, 1982, p. 147.chanrobles virtual law library

23 People v. Laredo, G.R. Nos. 81249-51, May 14, 1990, 185 SCRA 383.chanrobles virtual law library

24 People v. Balatucan, et al., G.R. Nos. 93805-06, February 7, 1992.chanrobles virtual law library

25 People v. Buka, et al., G.R. Nos. 68311-13, January 30, 1992.