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EN BANC

[G.R. No. 127753. December 11, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DOMINGO VALDEZ Y DULAY, Accused-Appellant.

D E C I S I O N

BUENA, J.: chanrobles virtual law library

For automatic review is the decision of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta, Pangasinan convicting appellant Domingo Valdez y Dulay guilty of two crimes: (1) murder for which he was sentenced to suffer the death penalty and (2) illegal possession of Firearms and Ammunition under Presidential Decree No. 1866 for which he was sentenced to suffer reclusion perpetua based on the following criminal indictments: chanrobles virtual law library

CRIMINAL CASE NO. U-8719chanrobles virtual law library

That on or about 31^st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully, and feloniously attack and shot one Labrador Valdez y Madrid, hitting the latters chest and the gunshot wounds inflicted being mortal, caused the direct and immediate death of the said victim, to the damage and prejudice of his heirs. chanrobles virtual law library

Contrary to Article 248, Revised Penal Code.¹ chanrobles virtual law library

CRIMINAL CASE NO. U-8720chanrobles virtual law library

That on or about the 31^st day of October, 1995 at barangay San Roque, Municipality of San Manuel, Province of Pangasinan, and within the jurisdiction of this honorable Court, the said accused did then and there, wilfully, unlawfully, and feloniously have in his possession, control and custody a firearm of an unknown caliber, make and brand without authority of law, and which he used in shooting to death Labrador Valdez y Madrid. chanrobles virtual law library

Contrary to Presidential Decree No. 1866.² chanrobles virtual law library

On October 31, 1995, at around 9:00 oclock in the evening at Sitio Laclac, Barangay San Roque, San Manuel, Pangasinan, Marcelo Valdez was under his nipa house talking with his son Labrador Valdez. At that time, Marcelos other housemates his wife, son Rolando Valdez, daughter-in-law Imelda Umagtang and an eight-year-old boy named Christopher Centeno were staying upstairs preparing to sleep. In the course of their conversation, Labrador was lying sideways on a carabao sled, placed under the family nipa house. He was facing his father at the eastern side of the house, at a distance of about less than two (2) meters from each other.[3 TSN, June 13, 1996, pp. 14 and 17. 3 Suddenly, two consecutive gunshots were fired coming from the western side of the house by an assailant.⁴ The first shot landed on the left forefinger and thumb of Labrador, while the second shot hit him two (2) inches from the left shoulder, below the neck which exited at the right side just below his breast.⁵ After firing, the assailant immediately ran away towards the west direction.[6 chanrobles virtual law library

Marcelo Valdez who was talking to his son, immediately called for help while the victim managed to walk upstairs towards the kitchen. The stunning sound of the two gunfire and Marcelos cry for help alerted Imelda Umagtang and her common-law husband Rolando Valdez, who were both lying on bed, to verge upon the kitchen where they saw the victim bathed in his own blood. When Rolando inquired from the victim who shot him, the latter replied that it was the appellant. At this time, the victims brother and in-laws arrived. They also asked the victim what happened and the latter once more said that it was appellant who shot him. At such time, the search for the passenger jeep that will transport the victim to the hospital continued. After an hour, they were able to find a passenger jeep but the victim already succumbed to death prior to his transport to the hospital. chanrobles virtual law library

The next day, on November 1, 1995, Dr. Asuncion Tuvera of San Manuel Rural Health Unit conducted the autopsy on the cadaver of the deceased in the latters house. The medical examination revealed the following gunshot wounds- chanrobles virtual law library

A. External findings: chanrobles virtual law library

Chest - gunshot wound at the left sternal line 2 inches below the left clavicle, 2 cm in diameter penetrating chanrobles virtual law library

- gunshot wound at the right enterior axillary line at the level of the lumbar area. chanrobles virtual law library

Extremities lacuated wound on the left thumb and index finger with fracture of the phalanges. chanrobles virtual law library

B. Internal findings: chanrobles virtual law library

Chest fracture of the 3^rd enterior left rib. chanrobles virtual law library

Abdomen placuated wound of the liver. chanrobles virtual law library

Cause of death: chanrobles virtual law library

Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area. (Exhibit E; records, p. 7) chanrobles virtual law library

Thereafter, appellant was charged before the trial court with two separate information for murder and illegal possession of firearms to which he pleaded not guilty. After trial, judgment was rendered convicting appellant as earlier mentioned. The dispositive portion of the decision reads: chanrobles virtual law library

WHEREFORE, in view of all the foregoing, the Court finds: chanrobles virtual law library

IN CRIMINAL CASE NO. U-8719: chanrobles virtual law library

The accused DOMINGO VALDEZ Y DULAY GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized under republic Act No. 7659 otherwise known as the Heinous Crime Law, the offense having been committed with the attendant aggravating circumstances of evident premeditation, abuse of superior strength and nighttime, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law, to pay the heirs of the victim LABRADOR VALDEZ in the amount of P50,000.00 as indemnity; P23,500.00 as actual damages; P200,000.00 as moral damages; and to pay the costs. chanrobles virtual law library

IN CRIMINAL CASE NO. U-8720: chanrobles virtual law library

The accused DOMINGO VALDEZ Y DULAY, GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866 and hereby sentences him to suffer imprisonment of RECLUSION PERPETUA and to pay the costs. chanrobles virtual law library

Finally, it is said: Dura lex, sed lex, translated as The law is harsh, but that is the law. chanrobles virtual law library

SO ORDERED.[7 chanrobles virtual law library

Appellant questions his conviction arguing that the court a quo erred - chanrobles virtual law library

I. in convicting the accused of murder notwithstanding the failure of the prosecution to prove his guilt beyond reasonable doubt. chanrobles virtual law library

II. in appreciating the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation, abuse of superior strength and nighttime on the assumption that indeed accused appellant shot the victim. chanrobles virtual law library

III. in not applying the provision of R.A. 8294, amending P.D. 1866 chanrobles virtual law library

IV. in convicting the accused for two separate offenses chanrobles virtual law library

V. finding the accused guilty of violating P.D. 1866[8 chanrobles virtual law library

After a careful examination of the records, appellants conviction should be upheld. The elements of murder concur in this case. Appellant shot the victim twice. The wounds sustained by the deceased at the left thumb, index finger and at the left shoulder below the neck exiting to the right side just below the breast were caused by bullets. As a result of these gunshot wounds, the victim suffered Cardio respiratory arrest secondary to severe hemorrhage secondary to gunshot wound on the chest and lumbar area which was described in the medico-legal report as the proximate cause resulting to his death. chanrobles virtual law library

Appellants defense is premised primarily on denial and alibi. He argues that on the day of the incident he was hauling and transporting 27 cavans of palay with Reymante and Conrado Centino[9 from 6 to 9 oclock in the evening of October 31, 1995, to the house of Mrs. Juanita Centino. Thereafter, they took supper at Conrados house and drank wine and went home around 11 oclock in the evening. His version was corroborated by Reymante and Conrado and the latters mother, Mrs. Centino, a sexagenarian. Such defenses, however, aside from being inherently weak, cannot prevail against a positive and explicit identification of him not only by Marcelo Valdez but also by the victim himself. To exculpate himself, appellant must not only show that it was impossible for him to be at the place where the crime was committed, but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[10 The distance between the place where the crime happened, to the Centinos house where appellant claimed he was, is more or less one (1) kilometer, which could be negotiated by walking for thirty (30) minutes, and twenty (20) minutes by riding a vehicle.¹¹ Appellants whereabouts at the time of the incident was insufficient to foreclose any possibility for him to be present at the scene of the crime, given the proximity of the two places. chanrobles virtual law library

Appellant further contends that witness Marcelo Valdez could not have positively identified him because there was only a single kerosene lamp lighting the area and the witness was already seventy years old, who, at such age, would have a nebulous identification of the assailant. Appellants assertion of impossibility of identification in a period of a few seconds look at the time of the second shot, which was fired successively, was negated by the fact that appellant shot the victim at a distance of around two meters from the kerosene lamp. The distance of the appellant from the kerosene lamp does not preclude the possibility of identification since the place was properly illumined capacitating the witness to identify the assailant. In fact, both Marcelo and the deceased were able to identify appellant. chanrobles virtual law library

Appellant capitalizes on the alleged failure of Lilia Valdez (wife of the deceased) to mention to the officer who investigated the killing, that she heard her husband say that the appellant was his assailant. He argues that her testimony in court that she heard her husband say that it was appellant who shot him, was merely an afterthought. In support thereof, appellant quotes the following answers of Lilia Valdez during cross-examination - chanrobles virtual law library

ATTY. VIRAY- chanrobles virtual law library

Q: Now, in the sworn statement Madam witness which you gave to the police authorities of San Manuel, Pangasinan, you never mentioned that your husband told you that he was allegedly shot by the accused, is this correct? chanrobles virtual law library

A: Yes, sir. chanrobles virtual law library

ATTY. VIRAY: chanrobles virtual law library

The answer is not responsive, we request the question to be read back. chanrobles virtual law library

COURT: She said, she did not tell that to the police. chanrobles virtual law library

ATTY. VIRAY: chanrobles virtual law library

Q: Why did you not tell to the police authorities that your husband told you that your husband was shot by Domingo Valdez? chanrobles virtual law library

A: I forgot, sir. [TSN, July 3, 1996, pp. 24-25] chanrobles virtual law library

We have thoroughly reviewed the records and studied the alleged contradiction between the court testimony and the sworn statement of Lilia Valdez only to find that appellant is misleading the court. In her sworn statement Lilia Valdez stated - chanrobles virtual law library

15. Q: Was you (sic) husband able to identify his assailant? chanrobles virtual law library

A: Yes, sir. He identified Domingo Valdez as his assailant when asked by brother-in-law Rolando Valdez before he was brought down to kitchen on the way to the hospital, sir. [Exhibit D, Folder II, Records, p. 3] chanrobles virtual law library

It is also clear from the records that as early as November 1, 1995, the day after the killing, the principal prosecution witness Marcelo Valdez (father of the deceased), along with Lilia Valdez (wife of the deceased), Imelda Umagtang (sister-in-law of the deceased) alluded to appellant as the killer before police officer Avelino Sandi, Jr. who conducted the investigation. Their respective sworn statements were reduced into writing denouncing and identifying appellant as responsible for the death of Labrador Valdez. Imelda Umagtang¹² testified to these utterances of the deceased in court. chanrobles virtual law library

The victims septuagenarian father Marcelo Valdez likewise affirmed the identity of the appellant as the assailant. He testified in court that he recognized the assailant with the lighting coming from the kerosene lamp hanging on the wall, which illuminated the whole ground of the nipa hut.¹³ He claimed that he recognized appellant at the second shot[14 at a distance of around three meters (3) away from him.[15 At the time appellant fired the second shot, appellant was less than a meter away from the victim¹⁶ and around two meters from the kerosene lamp.¹⁷ chanrobles virtual law library

Lilia Valdez, the victims wife, recounting that fateful day, similarly attested appellants culpability in court. She testified that when her husband was shot she was in her house with her children, about 25 to 30 meters¹⁸ from the victims location. When she heard the gunfire and the summons of her parents-in-law that her husband was shot, she rushed to her husband and saw him bloodied, lying prostrate in the kitchen. She asked the victim what happened and the latter answered that appellant shot him. chanrobles virtual law library

Appellant likewise debunks the probative value given to Imelda Umagtangs testimony that she heard the victim say that it was appellant who shot him because such statement was not directed to her by the victim but to Rolando Valdez.[19 This according to appellant finds support in the following testimony of Imelda chanrobles virtual law library

ATTY. VIRAY chanrobles virtual law library

Q: So it is very clear from your statement that it was your live-in boyfriend, Rolando Valdez, who asked question from the victim not you, is this correct? chanrobles virtual law library

A: Yes, sir. chanrobles virtual law library

Q: You never asked questions from the victim, is this correct? chanrobles virtual law library

A: No, sir. I heard what he revealed to my live-in boyfriend, sir.²⁰ chanrobles virtual law library

There is no rule that a person who hears something cannot testify on what she heard. A dying declaration need not be particularly directed only to the person inquiring from the declarant. Anyone who has knowledge of the fact of what the declarant said, whether it was directed to him or not, or whether he had made inquiries from the declarant or not, can testify thereto. chanrobles virtual law library

Hearsay evidence, whether objected to or not, possesses no probative value unless the proponent can show that the same falls within the exception to the hearsay rule.²¹ The statement of the deceased uttered shortly after being wounded by the gunfire is a dying declaration, which falls under the exception to the hearsay rule.[22 It may be proved by the testimony of the witness who heard the same or to whom it was made.²³ Appellant contends that the identification by the deceased of his assailant, which was admitted as a dying declaration under Section 37, Rule 130 of the Rules of Court, cannot be admitted because when the said statements were uttered the declarant was not conscious of his imminent death,[24 relying on the following testimony of Imelda Umagtang and Lilia Valdez, thus chanrobles virtual law library

Q: What was your observation when he was lying down waiting for the ride to come? chanrobles virtual law library

A: He was already very weak, sir. chanrobles virtual law library

Q: Did somebody ask of his physical condition at that time? chanrobles virtual law library

A: Yes, sir. chanrobles virtual law library

Q: Who? chanrobles virtual law library

A: Lago Valdez, sir. chanrobles virtual law library

Q: What did he ask? chanrobles virtual law library

A: He asked if he can still manage, sir. chanrobles virtual law library

Q: What did Labrador Valdez answer? chanrobles virtual law library

A: He said, no more, sir. chanrobles virtual law library

Q: What do you mean by he cannot manage anymore? chanrobles virtual law library

A: He was already very weak at that time, sir. chanrobles virtual law library

Q: And? chanrobles virtual law library

A: And he was dying, sir. chanrobles virtual law library

Q: He said he was dying? chanrobles virtual law library

A: No, sir. chanrobles virtual law library

Q: But he was feeling weak already? chanrobles virtual law library

A: Yes, sir.²⁵ chanrobles virtual law library

and chanrobles virtual law library

Q: When you were there near your husband lying in the kitchen in the house of your father-in-law, what was your observation regarding his physical condition? chanrobles virtual law library

A: He was shot, Your Honor. chanrobles virtual law library

Q: Did you ask him what was he feeling at that time? chanrobles virtual law library

A: Yes, sir. chanrobles virtual law library

Q: What did he answer? chanrobles virtual law library

A: He said, he was weak, Your Honor. chanrobles virtual law library

Q: Did he tell you that he is going to die? chanrobles virtual law library

A: No, Your Honor.²⁶ chanrobles virtual law library

The victims statements prior to his death identifying appellant as his assailant have the vestiges of a dying declaration, the elements for its admissibility are: chanrobles virtual law library

(1) the declaration was made by the deceased under consciousness of his impending death; (2) the deceased was at time competent as a witness; (3) the declaration concerns the cause and surrounding circumstances of the declarants death; and (4) it offered in a criminal case wherein the declarants death is subject of inquiry.[27 chanrobles virtual law library

These requirements are present in this case. The deceased made, before his death, more than one statement, naming the person who shot him. The statements uttered by the deceased were in response to the queries about the identity of the assailant. Such utterances are admissible as a declaration of the surrounding circumstances of the victims death, which were uttered under the consciousness of an impending death. That the victim was conscious of his impending death is shown by the extent and seriousness of the wounds inflicted upon the victim. The victim, prior to his death, was competent to be a witness in court and such dying declaration is offered in a criminal prosecution for murder where he was himself a victim. chanrobles virtual law library

In a further but futile attempt to exculpate himself from liability, appellant contends that he has no motive to kill the victim. While he admitted that the victim eloped with his wife, he was not the only suspect having a motive to kill the victim. Suffice it to say that the evidence on motive is inconsequential when the identity of the culprit has been positively established[28 as in this case. chanrobles virtual law library

Ultimately, the issues raised by appellant fall within the sphere of credibility of witnesses which, the reviewing court on appeal, ordinarily gives deference to the assessments and conclusion of the trial court provided it is supported by the evidence on record. Findings of facts by the trial court are usually not disturbed on appeal on the proposition that the lower court had the unique opportunity of having observed the elusive and incommunicable evidence of the witnesses deportment on the stand while testifying. chanrobles virtual law library

The killing was attended by treachery when the deceased was shot at his back while lying on a carabao sledge conversing with his father, in a sudden and unexpected manner giving him no opportunity to repel it or defend himself against such attack,[29 and without any provocation on his part. With respect to the other aggravating circumstances of evident premeditation, abuse of superior strength, and nighttime, this Court cannot appreciate the same against the appellant for lack of factual basis. There is no evidence on record that appellant contemplated and took some time of cool reflection before performing his evil act for evident premeditation to set in. The abuse of superior strength, assuming there is any, is already absorbed in treachery. Nighttime as an aggravating circumstance was not established for lack of proof that appellant specifically sought the darkness of night to perpetuate his deed. In the absence of any evidence that nocturnity was specifically sought for by the offender in the commission of the crime, such aggravating circumstance may not be validly appreciated. chanrobles virtual law library

In criminal prosecutions, the accused is entitled to an acquittal, unless his guilt is shown beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.[30 The prosecution ably discharged its duty by establishing its case against appellant through the required quantum of proof. chanrobles virtual law library

In Criminal Case No. U-8720, appellant was found guilty of the crime of Illegal Possession of Firearms and Ammunition punished under P.D. 1866 and was sentenced to suffer the penalty of reclusion perpetua and to pay the costs. His separate indictment was on account of the unlicensed firearm used in the killing. Under Section 1 of Republic Act No. 8294,[31 if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Although the crime in this case was committed in 1995, the amendatory law (R.A. No. 8294) which became effective on July 6, 1997, fifteen (15) days after its publication in Malaya and Philippine Journal on June 21, 1997, since it is favorable to appellant,³² shall be given a retroactive effect. Therefore, the illegal possession or use of the unlicensed firearm may no longer be separately charged³³ and only one offense should be punished, viz., murder in this case, and the use of unlicensed firearm should only be considered as an aggravating circumstance.[34 Considering that appellant is liable for murder, the illegal possession case can no longer be pursued because it is merely treated as an aggravating circumstance. chanrobles virtual law library

Article 248 of the Revised Penal Code penalizes murder with reclusion perpetua to death. Since the killing was committed with the use of an unlicensed firearm, such circumstance will be treated merely as an aggravating circumstance under R.A. 8294. Pursuant to Article 63 of the Revised Penal Code, when the law prescribes a penalty composed of two indivisible penalties, such as reclusion perpetua to death, there being one aggravating circumstance, the greater penalty (death) shall be applied. However, the aggravating circumstance of use of an unlicensed firearm cannot be appreciated in this case because its retroactive application would be unfavorable to the accused, since the higher penalty of death would necessarily be imposed. Thus, we could only impose the penalty of reclusion perpetua in line with the ruling in People vs. Nepomuceno, Jr.³⁵ - chanrobles virtual law library

It must be underscored that although R.A. No. 7659 had already taken effect at the time the violation of P.D. No. 1866 was allegedly committed x x x there is nothing in R. A. No. 7659 which specifically reimposed the death penalty in P.D. No. 1866. Without such reimposition, the death penalty imposed in Section 1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19(1) of Article III of the Constitution. Conformably therewith, what the trial court could impose was reclusion perpetua. chanrobles virtual law library

WHEREFORE, the assailed judgment is hereby MODIFIED as follows: chanrobles virtual law library

1. In Criminal Case No. U-8719 for MURDER, the penalty imposed on accused-appellant DOMINGO VALDEZ Y DULAY is reduced to reclusion perpetua. In addition to the death indemnity of P50,000.00, the P200,000.00 moral damages awarded by the trial court to the heirs of Labrador Valdez y Madrid is reduced to P50,000.00,and the P23,500.00 awarded as actual damages is likewise reduced to P19,000.00, the amount actually proved. chanrobles virtual law library

2. In Criminal Case No. U-8720 for ILLEGAL POSSESSION OF FIREARMS, the sentence imposed on accused-appelant DOMINGO VALDEZ y DULAY is SET ASIDE and ANNULLED and the case is DISMISSED, the act charged therein being considered merely as an aggravating circumstance pursuant to P.D. 1866, as amended by Rep. Act No. 8294. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

[1 Records, Folder II, p. 32.

[2 Records, Folder I, p. 17.

[3 TSN, June 13, 1996, p. 14 and 17.

[4 Ibid. , at p. 7.

[5 TSN, August 13, 1996, pp. 7-8.

[6 TSN, June 13, 1996, p. 18.

[7 Rollo , pp. 163-164.

[8 Rollo , pp. 85-86.

[9 Surname Centino, as the name appears in the TSN, was referred to as Centeno in the RTC decision.9

[10 People vs. Javier , 269 SCRA 181 [1997].

[11 TSN, September 2, 1996, p. 24.

[12 TSN, June 26, 1996, pp. 6-7.

[13 TSN, June 13, 1996, p. 17.

[14 Ibid. , pp. 4,15 and 18.

[15 Ibid. , p. 5.

[16 Ibid. , p. 16.

[17 Ibid. , p. 5.

[18 TSN, July 3, 1996, p. 5.

[19 Rollo , p. 108.

[20 TSN, June 26, 1996, p. 22; Rollo, p. 108.

[21 People v. Villaviray, 262 SCRA 13, at p. 20 [1996].

[22 Section 37, Rule 130, Rules of Court. 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.

[23 Francisco, The Revised Rules of Court in the Philippines, Evidence, Volume VII, Part I, 1997 Edition, p. 548.

[24 Rollo , p. 106.

[25 TSN, June 26, 1996, p. 10; Rollo, pp. 106-107.

[26 TSN, July 3, 1996, p. 27; Ibid.

[27 People v. Marollano, 276 SCRA 84 [1997].

[28 People v. Valdez, 304 SCRA 611 [1999].

[29 Ibid. p. 626.

[30 Section 2, Rule 133, Rules of Court

[31 An act amending the provisions of P.D. 1866, as amended, entitled Codifying the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or distribution of firearms, ammunitions, or explosives or instruments used in the manufacture of firearms, ammunitions or explosives and imposing stiffer penalties for certain violations thereof and for relevant purposes.

[32 Article 22, Revised Penal Code. Retroactive effect of penal laws.- Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5, Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

[33 People v. Nepomuceno, Jr., 309 SCRA 466, 472 [1999].

[34 Ibid. ; see also People v. Valdez, 304 SCRA 611, 630 [1999].

[35 309 SCRA 466, 473 [1999].