DYING DECLARATION
00 and reported to Vice Mayor Antonio Biran the
From the foregoing judgment, accused Gregorio Laquinon
interposed the present appeal.
G.R. No. L-45470 February 28, 1985
The People's version of the case is as follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GREGORIO LAQUINON, alias "JOLLY", defendant-
appellant.
CONCEPCION, JR., J.:
Accused Gregorio Laquinon was charged with the crime of
murder in the Court of First Instance of Davao del Sur for
the killing of Pablo Remonde, coated as follows:
That on or about November 13, 1972, in
the Municipality of Hagonoy, Province of
Davao del Sur, Philippines, and within the
jurisdiction of this Honorable Court, the
above named accused, with treachery
and evident premeditation, armed with a
gun and with intent to kill, did then and
there willfully, unlawfully and feloniously
shoot one Pablo Remonde with said
weapon, inflicting upon the latter wounds
which caused his death.
After the trial, the lower court rendered a decision finding
the accused guilty of the crime charged and sentenced him
as follows:
IN VIEW OF ALL THE FOREGOING, the
Court finds the accused guilty beyond
reasonable doubt of the crime of murder,
and imposes upon him the penalty
of reclusion perpetua (Art. 248, Revised
Penal Code); to indemnify the heirs of the
deceased in the sum of P 12,000.
to pay the costs.
On November 13, 1972, at about 11:30
o'clock in the evening, Samama Buat,
barrio captain of Clib, Hagonoy, Davao
del Sur, was at his residence in barrio
Clib. In a short while he heard gunshots
coming from the bank of a river some
three hundred meters to the south of his
house (pp. 4-6, tsn, Dec. 8, 1975). Then,
his brother, Leocario Buat, arrived and
told him that a man was shouting for help
at the bank of the river. Samama Buat
told his brother to call the barrio
councilman. Thereafter, he proceeded to
the place where the unidentified man
was. His brother, Leocario and the barrio
councilman also arrived there. Samama
Buat found the man lying on the sand and
asked who he was. The man answered, "I
am Pablo Remonde" (pp 7-10, Id.).
Remonde's two hands were tied on his
back. He was lying face down (p. 10, Id).
Samama Buat then took the "ante
mortem" statement of Pablo Remonde.
He asked him who he was to which he
answered that he was Pablo Remonde.
Samama Buat asked "who shot you" and
Remonde said that it was Gregorio
Laquinon. He asked Pablo Remonde
whether from the gunshot wounds he
suffered he would survive to which the
victim answered "I do not know" (pp. 11,
19, 21, Id.; see also Exh. A, Folder of
Exhibits). After that, barrio captain Buat
went to the municipality of Hagonoy and
shooting of Pablo Remonde. Vice Mayor
Biran went to the scene of the incident
and asked the victim who shot him to
which the latter answered that he was
shot by Gregorio Laquinon (pp. 21 A to
23, tsn, Dec. 8, 1975). Pablo Remonde
was placed on a jeep of the Vice Mayor
and brought to the hospital (p. 23, Id,).
Pablo Remonde was admitted to the
Canos Hospital in Digos, Davao del Sur
where he was attended to by Dr. Alfonso
Llanos. Dr. Llanos performed an
operation on the victim from whose body
a slug was recovered (pp. 15-16, tsn, Jan.
26, 1976; Exh. B). Pablo Remonde died
in the hospital on November 16, 1972
because of bullet wounds (pp. 17-20, tsn,
Jan. 26, 1976; see also clinical chart.
Exh. C, Folder of Exhibits).
The accused Gregorio Laquinon denied having killed the
deceased. The trial court summarized his defense, as
follows:
In his defense, the accused declared that
he was a KM member; that he was
ordered by one Noli Cabardo, then their
CO, to fetch Pablo Remonde; he
requested one Cristino Nerosa to go with
him, and matter of factly, they brought
Remonde to the place where said CO
Cabardo with ten companions, was
waiting at the riverbank; that before
reaching the place, Nerosa separated
from him and he alone brought Remonde
to Cabardo. There Cabardo confronted
Remonde why, having been commanded
to buy some provisions in Matanao, he
(Remonde) never returned; to which
Remonde answered that he spent the
money 'in drinking and gambling; when
upon Cabardo got mad and as Remonde
attempted to escape, he (witness) heard
 a shot which must have been fired by
Cabardo as he was holding a .38 Cal.
revolver; that he (witness) also had that
evening a Cal. 22 paltik; that after the
shot he saw Remonde sprawled on the
ground, and then Cabardo ordered them
to go to the mountain as in fact they did;
that two days later during the day, their
mountain camp was raided by the PC and
Cabardo and two others were killed while
he (witness) was able to escape and went
to Magpet, North Cotabato, and engaged
in farming therein with his relatives; but
believing that as a KM member he
'cmmitted something,' he surrendered to
the Davao PC Barracks in May, 1975
(Exhibit '2'), where up to now he is being
confined.
The accused-appellant prays for the reversal of the
appealed judgment on the ground that the lower court erred
in finding him guilty of the crime charged on the basis of the
statement attributed to the deceased Pablo Remonde which
reads:
Q State your name and
other personal
circumstances.
A Pablo Remonde y
Saballa, 24 years old,
laborer and resident of
Pob. this mun.
Q Who shot you?
A Mr. Laquinon, a
person who ran for
councilor before the
ticket of Liberal last
local election and son
of Suelo Maravllias
whose name I don't
know.
Q Why you were shot
by said persons above?
A They are suspecting
me that I'm an informer
of Vice Mayor Viran
regarding KM .
Q Do you think you'll
die with your wound?
A I don't know sir.
The accused-appellant argues that the foregoing statement
is inadmissible in evidence as an ante-mortem declaration
because it was not executed under a consciousness of an
impending death; and that the deceased was not a
competent witness.
The fact that the deceased had named the son of Suelo
Maravillas who turned out as Cristino Nerosa as one of
those who shot him in his dying declaration does not make
the deceased an incompetent witness. Nor does it render
said dying declaration incredible of belief. The testimony of
the accused that he and Nerosa separated and that he
alone brought the deceased to Noli Cabardo is not
corroborated. It may be that Nerosa was with the accused
when the latter shot the deceased, as stated in the dying
declaration, but that the accused testified that Nerosa was
not with him when he brought the deceased to Noli Cabardo
in order to free Nerosa from criminal liability.
Nor does the testimony of Barrio Captain Samama Buat that
the place was dark and that the victim had told him that he
was shot by members of the KM make the deceased an
incompetent witness. On the contrary, it strengthens the
statement of the deceased since the accused is a member
of the KM.
But the dying declaration of the deceased Pablo Remonde
is not admissible as an ante-mortem declaration since the
deceased was in doubt as to whether he would die or not.
The declaration fails to show that the deceased believed
himself in extremist, "at the point of death when every hope
of recovery is extinct, which is the sole basis for admitting
this kind of declarations as an exception to the hearsay
rule." 1
It may be admitted, however, as part of the res gestae since
the statement was made immediately after the incident and
the deceased Pablo Remonde had no sufficient time to
concoct a charge against the accused.
On the whole, We are satisfied with the findings of the trial
court that the accused was responsible for the killing of
Pablo Remonde. We cite with approval the following
observations of the trial court:
Indeed, the Court cannot believe that CO
Cabardo did the killing as related by the
accused for the following reasons:
First, when the deceased was allegedly
delivered to CO Cabardo, he was already
hand-tied at his back, that the place of the
shooting was "covered by thick bushes
and beside the river", and that CO
Cabardo was with ten men excluding the
accused; under these circumstances, it is
hard to believe that the deceased, with all
those overwhelming handicap, would
attempt to flee.
Second, if the deceased truly tried to flee,
the logical thing he would do would be to
flee away from and not towards Cabardo;
in doing the former he would turn to his
right or to his left or towards his back; if
he fled to his left or right, or towards his
back, he would be exposing one side of
his body, or his back, and when fired
upon in that position he would have been
 hit on one side of the body or at his back.
The evidence as testified to by Dr.
Llanos however, shows that the
deceased had only one wound a gunshot
wound, in the abdomen; this shows he
was fired upon frontally, the bullet going
through and through the intestines and
lodged, presumably in the bony portions
of his back, that is why the slug (Exhibit
"B") was recovered. The accused's
version, therefore, that the deceased tried
to flee is hard to believe for being against
the physical facts.
Now, if the accused is innocent, why
should he relate such an incredible
version?
Oh what a tangled web they weave when
first day practice to deceive.
With these observations, the Court cannot believe that the
accused really delivered the deceased to CO Cabardo and
that it was Cabardo who shot him. As testified to by him,
their mountain camp was raided by the PC two days after
the incident, as a result of which raid Cabardo and two of
their companions were killed. The accused himself was able
to escape, went to hide in a relative's farm in faraway
Magpet, North Cotabato, did farming there until one day in
May, 1975, repentant that, as a KM member, he had
"committed something", he finally surrendered to the PC
Barracks in Davao City. Cabardo, may he rest in peace,
having gone to the other world, and can no longer speak in
his behalf, it is not unlikely that the accused conceived of
this outlandish defense by pointing to CO Cabardo, to free
himself from responsibility.
Most important to remember on this point
is that at the time the deceased grade his
"dying" statement, Cabardo was still alive;
that per the accused himself, he had no
previous differences with the deceased or
with the barrio captain; and that from the
prosecution witness Bo. Capt. Buat when
he took the statement of the deceased,
the deceased was feeling strong, surely,
under such circumstances it is hard to
believe that the deceased would name
the accused with whom he had no quarrel
and Nerosa as his killers if that was really
not the truth.
Accused is guilty beyond reasonable doubt of the crime of
murder qualified by treachery. The victim was apparently
shot while his two hands were tied at his back. Accused, in
shooting the victim, obviously employed means or force in
the execution of the offense which tended directly and
specially to insure its execution without risk to himself
arising from the defense which the offended party might
make.
WHEREFORE, with the modification that the indemnity to
be paid to the heirs of the deceased is increased to
P30,000.00, the judgment appealed from should be, as it is
hereby, AFFIRMED. With costs against the appellant.
SO ORDERED.
Makasiar (Chairman), Aquino, Abad Santos, Escolin and
Cuevas, JJ., concur.
Footnotes
1 People vs. Dominguez 22474, Nov. 26,
1970, 36 SCRA
=============================================
=======================================
EN BANC
[G.R. No. L-26193. January 27, 1981.]
PEOPLE OF THE PHILIPPINES, Plaintiff, v. RODULFO
SABIO, alias "PAPU", Defendant.
Solicitor General Estelito Mendoza for Plaintiff-
Appellee. .
Leonardo Aboli, for Defendant-Appellant.
SYNOPSIS
Before the Court a quo, the 13-year old accused was
charged with Robbery with Homicide for the death of
Catalino Espina, an octogenarian, owner of a small sari-sari
store located in his house, who, in the early morning of
October 5, 1965, was found on the second floor of his
dwelling wounded on the forehead, from which injury he
died three days later. The merchandise in his store was in a
state of disarray and the tin can containing the cash sales in
the amount of P8.00 was found empty. The accused was
positively identified by a neighbor of the victim who saw him
running from the scene of the incident that fateful morning,
and by the victim in his ante-mortem statement taken by the
police in the presence of the victims grandnephew. the
accused was found guilty as charged, with the attendant
aggravating circumstances or disregard of respect due to
the 80-year old victim and recidivism, and without any
mitigating circumstances. He was sentenced to death but in
view of his youth, the trial Court recommended that the
penalty be commuted to reclusion perpetua.
On automatic review, the Supreme Court held that only the
crime of homicide had been committed as the evidence
supportive of the charge of robbery was at best
circumstantial and did not establish beyond reasonable
doubt that the accused away personalty belonging to the
offended party.
Judgment modified. Accused was sentenced to an
indeterminate penalty.
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; ROBBERY; MERE
CIRCUMSTANTIAL EVIDENCE NOT SUFFICIENT FOR
CONVICTION. The evidence supportive of the charge of
robbery is at best circumstantial and does not establish
beyond reasonable doubt that the accused had carried
away personalty belonging to the offended party. There was
no eyewitness to the alleged robbery, nor was any part of
the alleged missing objects recovered. The consumation of
the robbery cannot be inferred nor presumed from the
circumstances that the accused was seen running "with his
hands inside his shirt", or that the "barro", alleged to have
contained cash amounting to about P8.00, was seen on the
floor, open and empty, or that the things and merchandise
inside the house were in disarray (People v. Labita, et al,
Phil. 1068, unreported case).
2. ID.; ID.; CONCLUSIVE PROOF OF THE COMMISSION
OF ROBBERY WITH HOMICIDE; NECESSARY FOR
CONVICTION. A conviction for Robbery with Homicide
requires that the robbery itself be proven as conclusively as
any other essential element of a crime (People v. Pacala,
58 SCRA 370 (1974), it not being enough to infer said
robbery from mere suspicion and presumption (U.S. v.
Alasa-as, 40 Phil. 878, 881).
3. ID.; ID.; ID.; INTENT TO ROB MUST BE PROVEN.
"Where there was no eyewitness to the alleged robbery,
and the evidence merely shows that after the killing some of
the things inside the house where the killing took place were
missing, it cannot be presumed that the accused killers
committed robbery. It is necessary to prove intent to rob.
This necessarily includes evidence to the effect that the
accused carried away the effects or personalty of the
offended party. In the absence of evidence that the accused
carried away the missing objects, they cannot be convicted
of robbery (Ambahang and Amid, 108, Phil. 325; Villorente
and Bislig, 30 Phil. 59; Barruga, 61 Phil. 318, Aquino,
Revised Penal Code, 1976 Ed., pp. 1415-1416)
4. ID.; ID.; DYING DECLARATION IN ADMISSIBLE TO
ESTABLISH FACT OF ROBBERY IN CASE AT BAR.
The dying declaration of the victim which points to the
accused as the one slashed and robbed him cannot be
admitted to establish the factor of robbery. The admission of
dying declarations has always been strictly limited to
criminal prosecutions for homicide or murder as evidence of
the cause and surrounding circumstances of death.
5. ID.; ID.; ID.; PROBATIVE FORCE OF VICTIMS DYING
DECLARATION LIES IN THE BELIEF OF AN IMPENDING
DEATH; CASE AT BAR. The seriousness of the injury on
the victims forehead which had affected the brain; his
inability to speak until his head was raised; the spontaneous
answer of the victim that "only Papu Sabio is responsible for
my death" ; and his subsequent demise from the direct
effects of the wound on his forehead, strengthen the
conclusion that the victim must have known that his end
was inevitable. The death did not ensue till three days after
the declaration was made will not alter its probative force
since it is not indispensable that declarant expires
immediately thereafter. It is the belief in impending death
and not the rapid succession of death, in point of fact, that
renders the the dying declarations admissible.
6. ID.; ID.; ID.; NON-CLOSURE THEREOF TO THE
ACCUSED AT THE EARLIEST OPPORTUNITY DOES
NOT MILITATE AGAINST THE FACT OF ITS EXECUTION.
The mere failure of the police to confront the accused
with the ante-mortem declaration the first time the latter was
arrested and incarcerated neither militates against the fact
of its execution considering that it was evidence that the
police was under no compulsion to disclose.
7. ID.; ID.; WITNESSES; CREDIBILITY OF TESTIMONY;
DISCREPANCIES REFERRING TO MINOR DETAILS OR
COLLATERAL MATTERS DO NOT DESTROY THE
EFFECTIVENESS OF THEIR TESTIMONY; CASE AT
BAR. The alleged divergence between Jesusas
statement at the preliminary investigation and her testimony
at the trial merits no serious consideration since an affidavit,
"being taken ex-parte is almost always incomplete and often
inaccurate." Besides, the discrepancies pointed out by the
defense, to wit: whether or not Jesusa saw what the
accused did after leaving the house after the incident, refer
to minor details or collateral matters which do not destroy
the effectiveness of her testimony. Further, the discrepancy
as to the exact date when the witness actually disclosed to
the authorities her having seen the accused on the morning
of the incident, is also minor detail which does not detract
from the reliability of her identification of the accused.
Moreover, the defense had not shown any ulterior motive on
the part of the witness that would make her implicate and
testify falsely against the accused, who was a neighbor and
an acquaintance.
8. ID.; CIVIL PROCEDURE; JUDGMENTS; RENDITION
THEREOF ONE DAY AFTER THE CLOSE OF THE TRIAL
NOT OBJECTIONABLE. The defense decries the speed
with which the trial Court decided the case, alleging that the
decision was prepared and signed on April 29, 1966, or one
day after the close of trial on April 28, 1966, and was read
to the accused on April 30, 1966, without benefit of a
transcript of stenographic notes memoranda of the parties,
so that the trial Court not have seriously considered the
merits of the case or must have prejudged even before the
trial ended. That contention is belied by the detailed findings
of facts in the decision of the trial Court duly supported by
the transcript of stenographic notes now on record.
9. ID.; EVIDENCE; ALIBI; CANNOT PREVAIL OVER
POSITIVE IDENTIFICATION OF ACCUSED. The alibi
put up by the accused crumbles under the positive
identification by witnesses and the dying declaration of the
victim, aside from the fact that because of the proximity of
the house of the accused to that of the victim, it was not
possible for the accused to have been at the scene of the
crime.
10. CRIMINAL LAW; ROBBERY WITH HOMICIDE; ONLY
HOMICIDE COMMITTED IN THE CASE AT BAR;
PENALTY THEREFOR. The accused is guilty only of
homicide, attended by the aggravating circumstances of
disregard of respect due the offended party on account of
his age, and dwelling. Recidivism is not to be considered
because of the finding that the crime or robbery has not
been conclusively established. The penalty imposable for
the crime of homicide, attended by aggravating with no
mitigating circumstances, is reclusion temporal in its
maximum period or seventeen years, four months and one
day to twenty years. In the case at bar, the accused, guilty
of the crime of homicide, is sentenced to an indeterminate
penalty of twelve years of prision mayor as minimum, to
twenty years of reclusion temporal as maximum; to
 indemnify the heirs of the deceased in the amount of
P12,000.00; and to pay the costs.
ABAD SANTOS, J., dissenting:chanrob1es virtual 1aw
library
REMEDIAL LAW; EVIDENCE; ROBBERY ESTABLISHED
BY CIRCUMSTANTIAL EVIDENCE IN INSTANT CASE.
Robbery was committed by Rodolfo Sabio. The tin car or
"barro" which contained some P8.00 the night before the
incident, was found empty and lying on the ground of the
house where the deceased had his store. It could only have
been Sabio who took the money for it was he who entered
the store and hacked Catalino Espina who died as a result
thereof. True, Catalino Espina could not state how much
money was lost. But from inability to state the amount lost, it
does not follow that nothing was lost. The two the loss
and the amount of the loss are two entirely different
concepts. Naturally, Catalino could not state how much
money was lost because he was hacked severely on the
forehead before the money was taken by Sabio. A man
mortally wounded who did not hand over any money to his
assailant would not expected to answer an inconsequential
question as to the amount of his loss. A man in his situation
would be thinking not how much he had lost but of his
impending death. There would be no motive for the killing if
there was no robbery and robbery cannot be discounted
after Sabio had entered the store and attacked its owner.
DECISION
MELENCIO-HERRERA, J.:
Automatic review of the death penalty imposed upon the
accused, Rodulfo Sabio alias "Papu", by the Court of First
Instance of Cebu, Branch II, in Criminal Case No. V-10804
for Robbery with Homicide.
On October 5, 1965, at about 5:00 oclock in the morning, in
Barrio Looc, Argao, Cebu, Catalino Espina, 80-years old,
single, owner of a small sari-sari store located in his house
was found on the second floor of his dwelling wounded on
the forehead, from which injury he died three days later.
Prosecution witness JESUSA BIRONDO, a fish vendor,
testified that about 5:00 oclock in the morning of October 5,
1965, as she was preparing to go to the seashore, she
heard a shout for help coming from the house of her
neighbor, Catalino Espina, which was located just across
the street from her house. She recognized the voice as
Catalinos. When she looked out of the window she saw the
accused Rodulfo Sabio, who is nicknamed "Papu", coming
out of the door of the store at the victim house. The accused
was wearing a black shirt with sleeves up to the elbow and
dark trousers. She had known the accused since his birth
because his house is located at the seashore in Barrio
Looc, just about 40 meters from her own house, and she is
familiar with his appearance because she used to see him
everyday passing by her house or at the seashore from the
window. Then she shouted for help. Shortly thereafter, she
saw from her window that many persons, about 50 to 100
neighbors, went to Catalinos house. The following day after
the incident, or on October 6, 1965, Jesusa told Police
Sergeant Jesus Alberca about what she heard and saw.
She executed a sworn statement on the same date. 1
CAMILO SEMILLA, a 27-year-old fisherman and
grandnephew of the victim, who had lived with the latter
since childhood, left Catalinos house at past 4:00 oclock in
the early morning of October 5, 1965 to go fishing. At the
seashore, he waited for somebody to help him drag his boat
to the sea from the elevated support on which it was
hoisted. The first person he saw was the accused, Rodulfo
Sabio, who came running past him about 6 meters away,
towards his (Sabios) house. The accused was wearing a
black T-shirt with sleeves reaching beyond the elbow and
long "maong" pants. Witness Camilo demonstrated that the
accused had his two hands tucked inside his shirt in front of
the stomach while running. Minutes later, a certain Enok
Calledo arrived and told Camilo to go home because his
grand-uncle "Noy Ino" had cried for help. When Camilo
reached home, he saw "Ino" (the victim) lying wounded
upstairs. He was moaning and was able to speak only when
his head was raised. When Camilo called the victims name,
the latter responded and told Camilo to fetch a policeman.
Camilo noticed that the merchandise in the store were in
disarray and the tin can called "barro", which he knew had
contained the cash sales for Sunday and Monday of about
P8.00 because they counted the money the previous night,
was lying empty on the floor. When police officers Paulino
Fuentes and Pedro Burgos arrived, Patrolman Fuentes
asked "Manoy Ino" questions which, together with the
answers, he wrote on a page torn from a calendar hanging
somewhere in the room. 2 Patrolman Fuentes then
instructed Camilo to take the victim to the town dispensary
at Argao, Cebu, where he was treated. But because the
victims condition was considered serious he was
immediately transferred to the Southern Islands Hospital
where he died three days later. 3
PAULINO FUENTES, a policeman assigned at the
municipal building of Argao, Cebu, received a report at
about 5:30 oclock in the morning of October 5, 1965, that
"Ino" Espina was hacked in barrio Looc. He and another
policeman, Pedro Burgos, proceeded to the victims house
where he saw the latter lying on the floor, wounded and
bleeding on the forehead. Patrolman Fuentes asked the
victim who had hacked him and the latter answered that it
was "Papu" Sabio, son of Menes. According to said
Patrolman, the person referred to was the accused, who, as
well as his parents, have been known to the witness for the
past three years. Patrolman Fuentes asked the victim why
"Papu" had hacked him and the latter answered that "Papu"
had demanded money from him. Patrolman Fuentes also
asked the victim how much money he had lost but the latter
was not able to answer the question. Sensing that the
wound was serious since it was bleeding profusely,
Patrolman Fuentes decided to take down the statement of
the victim. He detached a leaf from a calendar and wrote
down on it the questions he propounded as well as the
answers of the victim. He then had it thumbmarked by the
victim with the latters own blood as no ink was available.
Present at the time were Pedro Burgos, another police
officer, and Camilo Semilla, the grandnephew. Patrolman
Fuentes himself and Pedro Burgos signed as witnesses.
Reproduced hereunder in full is the said
statement:jgc:chanrobles.com.ph
"Antemortem"
"P Kinsa may ngalan nimo.
T Catalino Espina. Q If you will die, who is responsible for your death?
P - Taga diin man ikao A Only Papu Sabio is responsible for my death.
T - Taga Looc, Argao, Cebu. Q Are you going to sign this or affix your fingerprint?
P Kinsa may nag tikbas kanimo kon nagtulis kanimo? A Yes.
T Si Rodulfo (Pafo) Sabyo nga anak ni Menez nga taga Brownish fingerprint mark
Looc.
and across it is written the word
P Kon ikao mamatay kinsa may responsabli sa imong
kamatayon. CATALINO ESPINA.
T Si Pafo Sabyo ro gayod ang responsabli sa akong Wit:chanrob1es virtual 1aw library
kamatayon.
1. (Sgd.) Paulino Fuentes
P Imo ba kining permahan o tamlaan sa imong todlo?
2. (Sgd.) Pedro Burgos" 5
T Oo.
Thereafter, Patrolman Fuentes advised Camilo Semilla to
Catalino Espina bring the victim to the hospital. Patrolman Fuentes observed
that the things of Catalino and the store items like canned
(Thumbmarked) sardines were all in disarray while the tin can ("barro") was
already opened. 6
Wit:chanrob1es virtual 1aw library
On October 5, 1965, DR. MELITA REMOTIQUE AO,
1. (Sgd.) Paulino Fuentes resident physician at the Southern Islands Hospital, Surgery
Department, found that the victim had suffered "compound
2. (Sgd.) Pedro Burgos" 4 fracture on the skull, bilateral at the front-parietal area" with
"laceration and cerebral contusion." From the nature of the
The English translation reads:jgc:chanrobles.com.ph injuries, she opined that the same could have been inflicted
by a sharp instrument or by bolo, and although the
"Q What is your name? laceration was not too deep as to cause instantaneous
death, the injury was fatal because it had injured the brain.
A Catalino Espina. 7 In a Decision dated April 29, 1966, the trial Court found the
Q From where are you? The prosecution also offered in evidence and as part of the
cross-examination of the accused a letter dated February
A From Lo-ok, Argao, Cebu. 17, 1966 of the Cebu Provincial Warden, 8 showing that the
accused had been previously convicted by final judgment
Q Who slashed you and robbed you? and had served sentence for two previous crimes of Theft
committed in the years 1963 and
A Rodulfo Sabio (Papu) the son of Menez from Lo-ok. 1964.chanroblesvirtualawlibrary
Testifying in his defense the accused RODULFO SABIO, 18
years old, a fisherman, claimed that in the evening of
October 4, 1965, he was at home listening to the radio till
past 9:00 oclock after which he went to sleep until about
6:00 oclock in the morning of the next day, October 5,
1965, when he was awakened by his younger brother who
said that certain policemen were looking for him. The
policemen took him to the municipal building and
incarcerated him without asking any question. He was
released the next day, October 6, but was arrested again on
November 24, 1965 at P. del Rosario Street in Cebu City.
The accused admitted that he knew witness, Camilo
Semilla, because they were neighbors but he denied that
Camilo had seen him running by the seashore at about 5:00
oclock in the morning of October 5, 1965 because at that
time he was still asleep at home. The accused also
admitted knowing witness, Jesusa Birondo, but alleged that
she could not have seen him coming out of the door of the
house of "Ino" Espina at about 5:00 oclock in the morning
of October 5, 1965 because at that time he was still asleep
at home. 9
Defense witness JACINTO MENDEZ corroborated the
accuseds defense of alibi by testifying that in the evening of
October 4, 1965, he slept in the house of Hermogenes
Sabio, father of the accused, because he and Hermogenes
had planned to go fishing the following morning. In the
house he saw the accused and the other children of
Hermogenes. When he woke up at 5:00 oclock in the
morning of the following day, October 5, he saw that the
accused and the other children were all in the house. He
repaired the nets after waking up, then went out to sea with
Hermogenes at about 7:00 oclock and came back at past
8:00 oclock in the morning. 10
accused guilty of the crime of Robbery with Homicide
attended by the aggravating circumstances of disregard of
respect due to the victim, an octogenarian, and recidivism,
without any mitigating circumstance, and sentenced him to
death; to indemnify the heirs of the deceased in the amount
of P6,000.00; and to pay the costs. The trial Court,
however, recommended that in view of the youthful age of
the accused, the death penalty be commuted to life
imprisonment.

In this appeal, the defense has made the
following:jgc:chanrobles.com.ph
"Assignment of Errors
I. "The lower Court erred in concluding that the felony of
Robbery with Homicide, instead of only Homicide, had been
established by the evidence;
II. "The lower Court erred in admitting Exhibit A of the
prosecution as an ante-mortem declaration of the victim;
III. "The tower Court erred in giving credence to the
testimony of Jesusa Birondo, witness for prosecution;
IV. "The lower Court erred in finding that the defendant-
appellant was the perpetrator of the crime." 11
1. We find merit in the contention that only the crime of
Homicide had been committed. The evidence indicative of
robbery consisted merely of the testimony of witness Camilo
Semilla who declared as follows:jgc:chanrobles.com.ph
"Q. How far was Rodulfo Sabio when he passed by you
running that moment?
A. About six meters from me.
Q. Did you notice while he passed by you running, if he was
holding anything?
x x x A. The canned sardines were disarrayed, others had
A. Yes, he had his hands inside his shirt."cralaw virtua1aw
library
Q. What did you notice inside the house upon your arrival
from the seashore?
A. I saw that the barro was already empty, lying on the
ground, and the merchandise items were in disorder.
Q. Do you know what things were placed in that thing or tin
can which you call barro?
A. It contained the cash sales.
Q. That barro which you mentioned, where was it before
you left the house to go to the shore that dawn?
A. Beside the bed of Ino.
Q. You said that tin can or barro where the cash sales
were kept was beside the bed, do you know more or less
the amount placed therein?
A. About P8.00.
Q. How do you know that tin can had P8.00 inside?
A. Because the previous night we counted the money.
Q. The P8.00 was the sales for how many days?
A. That was the sales for Sunday and Monday." 12
and that of Patrolman Fuentes, to wit:jgc:chanrobles.com.ph
"Q. When you were inside the house of Catalino Espina,
what else did you find in the course of your investigation?
A. I saw that the things of Catalino Espina and the stands
where the items for sale were displayed were all in disarray.
x x x
Q. What other conversation did you have with Catalino
Espina after the first question?
A. I asked him why Papu hacked him, and the victim
answered that Papu demanded money from him.
Q. Could we say that the answer of the deceased Catalino
Espina was outright after the question?
A. Yes, sir.
Q. Even with the second question, is that correct?
A. Yes, sir.
Q. Was there a third question you propounded to Catalino?
A. Yes, sir.
Q. Will you please let us know the third question?
A. I asked him how much money he lost, and he was not
able to answer that question.
Q. Do you know why he did not answer that question?
A. I think he did not answer that because when he was
hacked he had not yet given money to Papu."cralaw
virtua1aw library
x x x
Q. You stated in the direct examination that the things in the
house of the deceased Catalino Espina were in disarray, is
that correct?
A. Yes, sir.
Q. Will you please state before the Honorable Court the
things that were disarrayed when you went up the house of
the deceased?
dropped to the ground; the barro was already opened, and
other things in the store were in topsy-turvy state." 13
Plainly, the evidence supportive of the charge of robbery is
at best circumstantial and does not establish beyond
reasonable doubt that the accused had carried away
personality belonging to the offended party. There was no
eyewitness to the alleged robbery, nor was any part of the
alleged missing objects recovered. The consummation of
the robbery cannot he inferred nor presumed from the
circumstance that the accused was seen running "with his
hands inside his shirt", or that the "barro", alleged to have
contained cash amounting to about P8.00, was seen on the
floor, open and empty, or that the things and merchandise
inside the house were in disarray (People v. Labita, Et Al.,
[99 Phil. 1068, unreported case]). A conviction for Robbery
with Homicide requires that the robbery itself be proven as
conclusively as any other essential element (People v.
Pacala, 58 SCRA 370 [1974]), it not being enough to infer
said robbery from mere suspicion and presumption (U.S. v.
Alasa-as, 40 Phil. 878, 881).
"Where there was no eyewitness to the alleged robbery,
and the evidence merely shows that after the killing some of
the things inside the house where the killing took place,
were missing, it cannot be presumed that the accused
killers committed robbery. It is necessary to prove intent to
rob. This necessarily includes evidence to the effect that the
accused carried away the effects or personality of the
offended party. In the absence of evidence that the accused
carried away the missing objects, they cannot be convicted
of robbery." 14 (Emphasis supplied).
Nor can the dying declaration of the victim which, in part,
reads:jgc:chanrobles.com.ph
"Q. Who slashed you and robbed you?
A. Rodulfo Sabio (Papu) the son of Menez from Lo-
ok."cralaw virtua1aw library
be admitted to establish the fact of robbery. The admission
of dying declarations has always been strictly limited to
criminal prosecutions for homicide or murder 15 as
evidence of the cause and surrounding circumstances of
death. 16
2. Next, the defense questions the admissibility of Exhibit
"A" of the prosecution as an ante-mortem statement arguing
that there is no evidence showing that when the declaration
was uttered the declarant was under a consciousness of an
impending death; that, in fact, the victim had hopes of
recovery for his first word to Camilo Semilla was for the
latter to fetch the police. Defense counsel argues further
that there are doubts as to when said Exhibit "A" was
thumb-marked because, although it was already in
existence in the morning of October 5, 1965, as alleged by
Patrolman Fuentes, the accused was never confronted with
the document when he was taken into custody by the police
for the first time from the morning of October 5 to October 6,
1965, thereby implying that the document did not yet exist
at that time.
The arguments advanced are unavailing. The seriousness
of the injury on the victims forehead which had affected the
brain and was profusely bleeding; the victims inability to
speak until his head was raised; the spontaneous answer of
the victim that "only Papu Sabio is responsible for my
death" ; and his subsequent demise from the direct effects
of the wound on his forehead, strengthen the conclusion
that the victim must have known that his end was inevitable.
That death did not ensue till three days after the declaration
was made will not alter its probative force since it is not
indispensable that a declarant expires immediately
thereafter. It is the belief in impending death and not the
rapid succession of death in point of fact, that renders the
dying declaration admissible. 17 Further, the fact that the
victim told his grandnephew Camilo Semilla to fetch the
police, does not negative the victims feeling of
hopelessness of recovery but rather emphasizes the
realization that he had so little time to disclose his assailant
to the authorities. The mere failure of the police to confront
the accused with the ante-mortem declaration the first time
the latter was arrested and incarcerated from October 5 to
October 6, 1965, neither militates against the fact of its
execution considering that it was evidence that the police
was under no compulsion to disclose.
3. The credibility of witness Jesusa Birondo is also assailed
by the defense alleging firstly, that it is unbelievable that she
could have really identified the accused as the person who
came out of the victims house considering that the distance
from her window to that house was 17 meters, and at 5:00
a.m. on October 5, 1965, it was still dark and raining;
secondly, there is a glaring divergence between her
testimony at the trial and her statement at the preliminary
investigation, which statement was suppressed and not
made known to the trial Court; thirdly, said witness was
uncertain as to when she actually brought to the attention of
the authorities the matter of her having seen the accused
and finally, the defense asks, if it were true that the accused
had been identified by said witness to the Chief of Police
even before the accused was taken into custody, why was
not the accused confronted with such fact?
For one who has known the accused since the latters
infancy and who is very familiar with the accuseds
appearance because she sees him almost everyday
passing by her house or at the seashore where the accused
has his house, it is not incredible that Jesusa Birondo
recognized the accused, at side view, even at a distance of
17 meters (which was the trial Courts estimate of the
distance between Catalino Espinas house and that of
Jesusa Birondo as described by the accused) at 5:00
oclock in the morning and even if it were raining. Besides,
Jesusas description of the clothes that the accused was
wearing was corroborated by Camilo Semilla, who also saw
the accused that same morning.
The alleged divergence between Jesusas statement at the
preliminary investigation and her testimony at the trial
neither merits serious consideration since an affidavit,
"being taken ex-parte is almost always incomplete and often
inaccurate." 18 Besides, the discrepancies pointed out by
the defense, to wit: whether or not Jesusa saw what the
accused did after leaving the house of the victim and
whether or not she went down from her house after the
incident, refer to minor details or collateral matters which do
not destroy the effectiveness of her testimony. Further, the
discrepancy as to the exact date when the witness actually
disclosed to the authorities her having seen the accused on
the morning of the incident, is also a minor detail which
does not detract from the reliability of her identification of
the accused. Moreover, the defense has not shown any
ulterior motive on the part of witness Jesusa Birondo that
would make her implicate and testify falsely against the
accused, who was a neighbor and an acquaintance.
4. In the fourth and last assignment of error, the defense
decries the speed with which the trial Court decided the
case, alleging that the Decision was prepared and signed
on April 29, 1966, or one day after the close of trial on April
28 1966, and was read to the accused on April 30, 1966,
without benefit of a transcript of stenographic notes nor
memoranda of the parties, so that the trial Court could not
have seriously considered the merits of the case or must
have prejudged it even before the trial ended. That
contention is belied, however, by the detailed findings of
facts in the Decision of the trial Court duly supported by the
transcript of stenographic notes now on record.
Finally, the defense contends that the guilt of the accused
has not been established beyond reasonable doubt. The
alibi put up by the accused, however, crumbles under the
positive identification by witnesses Jesusa Birondo and
Camilo Semilla and the dying declaration of the victim,
aside from the fact that because of the proximity of the
house of the accused to that of the victim, it was not
impossible for the accused to have been at the scene of the
crime.
In summation, the accused is guilty only of Homicide,
attended by the aggravating circumstances of disregard of
respect due the offended party on account of his age, and
dwelling Recidivism is not to be considered because of our
finding that the crime of Robbery has not been conclusively
established.
The penalty imposable for the crime of Homicide, attended
by aggravating with no mitigating circumstances, is
reclusion temporal in its maximum period or seventeen (17)
years, four (4) months and one (1) day to twenty (20) years.
19
WHEREFORE, we find the accused, Rodulfo Sabio alias
"Papu", guilty of the crime of Homicide and hereby sentence
him to an indeterminate penalty of twelve (12) years of
prision mayor as minimum, to twenty (20) years of reclusion
temporal as maximum; to indemnify the heirs of the
deceased, Catalino Espina, in the amount of P12,000.00;
and to pay the costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr.,
Fernandez, Guerrero and De Castro, JJ., concur.
Barredo, J., took no part.
Separate Opinions
ABAD SANTOS, J., dissenting:chanrob1es virtual 1aw
library
I dissent in respect of the finding that no robbery was
committed by Rodulfo Sabio for the following
reasons:cralawnad
1. The tin can or "barro" which contained some P8.00 the
night before the incident, was found empty lying on the
ground of the house where the deceased had his store. It
could only have been Sabio who took the money for it was
as he who entered the store and hacked Catalino Espina
who died as a result thereof.
2. True, Catalino Espina could not state how much money
was lost. But from inability to state the amount lost, it does
not follow that nothing was lost. The two the loss and the
amount of the loss are two entirely different concepts.
3. Naturally Catalino could not state how much money was
lost because he was hacked severely on the forehead
before the money was taken by Sabio. A man mortally
wounded who did not hand over any money to his assailant
should not be expected to answer an inconsequential
question as to the amount of his loss. A man in his situation
would be thinking not how much he had lost but of his
impending death.
4. There would be no motive for the killing if there was no
robbery and robbery cannot be discounted after Sabio had
entered the store and attacked its owner.
Considering, however, the fact that Rodulfo Sabio has been
in detention since 1965 and the recommendation of the trial
judge that the death penalty imposed on him be commuted
to life imprisonment on account of his youth, my vote as to
the appropriate penalty is reclusion perpetua.
Aquino, J., concurs.
=============================================
========================================
SECOND DIVISION
[G.R. No. 115690. February 20, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. REY SALISON, JR.,* TIRSO ANDIENTE,
RUFINO DIGNARAN and LEONILO
FEDILES, accused, REY SALISON,
JR., accused-appellant.
DECISION
REGALADO, J.:
Accused-appellant Rey Salison, Jr., alias Loloy,
appeals from a judgment in Criminal Case No. 21805- 91 of
the Regional Trial Court of DavaoCity, Branch 16, which
imposed upon him the penalty of reclusion perpetua for the
murder of one Rolando Valmoria.
The information filed against appellant and the co-
accused Tirso Andiente, alias Sano, Rufino Dignaran, alias
Jongjong; and Leonilo Fediles, alias Ondoy, alleges:
That on November 30, 1990 in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, confederating and
mutually helping one another, with abuse of superior
strength and with intent to kill, willfully, unlawfully and
feloniously mauled and pummeled with hard wood one
Rolando Valmoria. Serious and fatal injuries were inflicted
which subsequently caused the death of Rolando Valmoria
on December 4, 1990.1
Upon arraignment, appellant Rey Salison, Jr., assisted
by counsel de oficio, entered a plea of not guilty.2 Trial then
proceeded only against him, because his three other co-
accused were and, still are, at large. On November 26, 1993,
the trial court rendered a decision with the following decretal
portion:
WHEREFORE, finding the accused Rey Salison guilty
beyond reasonable doubt of the crime of MURDER
punishable under Article 248 of the Revised Penal Code,
with no modifying circumstance present, the Court has no
other alternative but to impose the proper penalty
of reclusion perpetua, the same being the medium period
within the range of the penalty imposable and to pay the
cost(s); to indemnify the offended party (in) the amount
P50,000.00 as compensatory damages and P7,270.70 as
actual damages.3 (Corrections in parentheses ours.)
In the present appeal, herein appellant contends that
the trial court erred (1) in finding that there was proof beyond
reasonable doubt that the accused conspired with his co-
accused in killing the victim, (2) in not holding that accused is
only responsible for the injuries that he actually inflicted on
the victim, and (3) in admitting in evidence the alleged dying
declaration of the victim, as well as the agreement between
the parents of the accused and the victim.4
During the trial, the prosecution presented seven
witnesses, a picture of the pieces of wood 5 used by the
accused in killing the victim, receipts of expenses incurred in
the hospital for the treatment of said victim,6 a written
declaration of the victim after the incident, 7 and a written
agreement between the parents of appellant and the victim.8
The evidence of record reveals that at around 8:00
oclock in the evening of November 30, 1990, witness Maria
Magdalena Ayola saw appellant Salison approach the victim,
Rolando Valmoria, who was then watching television in a
store at Cory Village, Agdao, Davao City. Salison placed his
arm around Valmorias shoulder and brought him behind a
neighbors house where there was a mango tree. There,
appellant Salison boxed Valmoria in the abdomen.9
During the fistfight between Salison and Valmoria, the
three other accused Andiente, Dignaran and Fediles
suddenly appeared and joined the fight and simultaneously
attacked Valmoria. It was then when witness Emilia
Fernandez approached them that the three co-accused
disappeared, leaving Salison and Valmoria behind.
Fernandez was able to separate Salison from Valmoria.
However, the three co-accused returned and started to maul
Valmoria again, with Salison rejoining the three in assaulting
the victim.10
When Valmoria fought back, accused Salison, Fediles
and Andiente picked up pieces of wood and started to hit
Valmoria at the back on his nape, and on the rear part of his
head, Valmoria fell to the ground and, upon finding a chance
to do so, he stood up and ran towards his house which was
a few meters away. The assailants followed Valmoria but
failed to further hit the victim because Valmoria was able to
hide inside his house. All of the accused shouted for Valmoria
to come out but the latter refused, causing his four assailants
to hit the walls and windows of the Valmoria residence.
During this time, the victim remained seated inside the house.
Shortly thereafter, Valmoria started to complain of dizziness
and pain in his head which was bleeding at that time.11
Consequently, at the request of Valmoria, his parents
accompanied him to the house of witness Patricia Alcoseba,
the purok leader. The victim asked Alcoseba to write down
his declaration regarding the incident explaining that if he
should die and no witness would testify, his written
declaration could be utilized as evidence.
At the trial of the case, Alcoseba presented the written
and signed declaration of Valmoria and she affirmed what
was written in the declaration, testifying as follows:
PROSECUTOR DAYANGHIRANG III:
Q Mrs. Alcose(b)a, on November 30, 1990, where
were you?
A I was in our house.
Q Where?
A At Cory Village.
xxx xxx xxx
Q After you heard that there was trouble
in Cory Village, what happened next, if any?
A I noticed that the mother and father of Rolando
Valmoria helped Rolando Valmoria in
walking towards my house.
Q When they arrived (at) your house, what
happened next?
A When they arrived (at) the house, the father
requested that his son be allowed to sit on
our chair.
Q And what happened next after that?
A At that time Rolando Valmoria was sitting on the
chair and he was so weak and his neck and
head slumped on the chair and the
Valmorias requested me that he has
something to say and requested it to be
written and he stuttered in talking.
Q What did you do after the victim requested you?
A I obeyed. I obeyed the request and I got a
ballpen and paper.
Q Then what happened next?
A He related to me as to who started the trouble
as to who struck him first, the second and the
third.
Q Now Mrs. Alcose(b)a, while the victim was
narrating to you, what did you observe about
his condition?
A I observed that he was so weak and he was in
pain and I believed at that time he was dying.
Q Did the victim utter the words to that effect that
he was dying?
A Yes, sir. He told me by saying I believe that I will
die.
Q What else?
A Because he said that he felt a terrible pain on
his head.
Q Did he tell you the reason why he requested you
to make a declaration in writing?
A He told me that if anybody will testify regarding
my death this declaration of mine could be
utilized as evidence.
 xxx xxx xxx
Q Showing to you this statement, what a relation
is this one (sic) to the one you said which is
the statement of the victim?
A Yes, this is the one.
xxx xxx xxx
Q There is a printed name. . . a signature over the
printed name Rolando Valmoria, ang
guibunalan/ pasyente, whose signature is
this?
A That is the signature of Rolando Valmoria.
COURT:.
Q When the victim signed that document, was he
sitting?
A Yes, sir.
Q After the victim signed that document what
happened next?
A They left and they went to the detachment.
xxx xxx xxx
Q What happened to this piece of paper after the
victim signed this?
A I gave it to the mother.
Q So you did not keep that piece of paper?
A No, sir. I gave it to them so they will be able to
use it.
Q Before they left your house you gave that piece
of paper to the mother?
A At that time I did not give that declaration first to
the mother because they were attending to
their son.
Q When did you give that document to the
mother?
A When Rolando Valmoria died.
xxx xxx xxx
Q At the time you were taking this statement, from
the victim did he tell you the persons who
were responsible for his injuries?
A Yes, sir.
Q Who?
A Rufino Dignaran, Jr. alias Jongjong and the
second is Loloy Salison and the third one is
name(d) Tirso and the fourth, I cannot
remember the name of the fourth person
who hit the victim yes, now I remember, its
Leonilo Fediles.
Q You wrote that statement (o)n a piece of paper?
A Yes, sir.12 (Corrections and emphasis supplied.)
After making that declaration in the house of witness
Alcoseba, Valmorja and his parents proceeded to the
hospital where he was X-rayed and treated for his head
injuries. Subsequently, the victim was allowed to go home.
However, at 4:00 oclock the following morning, he started to
convulse and was rushed to the hospital. After three days
there, Valmoria died.13
The prosecution likewise presented Dr. Edmundo
Visitacion, Jr. who had conducted the necropsy which
established the cause of death of Valmoria indicated in the
post mortem certificate: He explained that the head injury
sustained by the victim was caused by a blunt external
trauma probably made by a solid object and this trauma
caused the subdular hemorrhage.14
On December 12, 1990, the parents of the victim and
those of the accused Salison and Dignaran entered into a
written agreement for the refund of hospital expenses of
Valmoria. However, no reinbursement was actually made.
On the other hand, the lone defense witness was
appellant Salison himself who merely denied having killed the
victim. He testified that on that day, together with his friends
Andiente, Dignaran, Fideles and a certain Andy, he was
visiting his girlfriend, a certain Neneng Edpalina, when he
heard Valmoria and Andiente shouting at each other. He tried
to pacify the two but the victim told him not to interfere
because he had nothing to do with them. Then he saw
Valmoria, Andiente, Dignaran, Fediles and a certain Andy
engaged in a fistfight. He was trying to stop the group from
fighting when witness Fernandez came and told him not to
interfere.
He then left and while he was on his way home, he
heard somebody shout agay, so he went back and saw
Andiente holding a piece of wood while Valmoria was running
towards his house. He had just grabbed the piece of wood
from Andiente when two CAFGUs arrived and arrested him,
Andiente, Dignaran and Fediles. All of them were
subsequently released after the investigation.15
The errors imputed to the trial court may be
consolidated and narrowed down to the question of credibility
of the prosecution witnesses, the existence of conspiracy in
the commission of the crime, and the evidentiary weight of
the dying declaration, as well as of the written agreement of
the parents of the victim and the accused.
In the instant case, the lower court held that:
The testimony of the prosecutions witnesses were clear,
strong and convincing to deserve full faith and credence. As
against the pure denial of the accused of his direct
participation as a conspirator, the positive, clear and
straightforward declaration of the prosecutions witnesses
must prevail. No motive or reason has been shown why
they would falsely impute to the accused the commission of
such a grave crime. The accused Rey Salison has no
quarrel or bickering with the prosecutions witnesses. In fact,
two of the prosecutions witnesses are friends of the mother
of Rey Salison. These prosecutions witnesses declared that
they saw (that) the accused Rey Salison together with the
other accused participated in boxing and mauling Rolando
Valmoria with pieces of wood)16
We agree with the findings of the trial court giving full
faith and credit to the witnesses for the People. The
uncorroborated testimony of appellant can not prevail over
the positive declarations of the prosecutions witnesses. In
fact, there were three eyewitnesses, with no ill motives
whatsoever, who testified against appellant and confirmed
Salisons direct participation in the commission of the crime.
The defense did not present any evidence to support
the denials of appellant. The putative girlfriend of
Salison, who was allegedly with him on that day, was
not presented to confirm that fact and thereby prove that he
did not participate in the fight between his co-accused
Andiente and the victim. His testimony pinpointing Andiente
as the killer was only a convenient way to avoid liability since
Andiente remained at large and could not refute Salisons
testimony imputing the crime to him.
Moreover, denial is a self-serving negative evidence
that can not be given greater weight than the declaration of
credible witnesses who testified on affirmative
matters.17 Definitely, therefore, the case of the Government
has outweighed and overwhelmed the evidential ramparts of
the defense.
Appellants assertion that conspiracy has not been
established is belied by the eyewitness accounts submitted
by the prosecution. The manner by which the killing was
executed clearly indicated a confederacy of purpose and
concerted action on the part of the accused. Prosecution
witness Magdalena Ayola, who saw the entire incident,
testified on this point, thus:
Q During that time were they alone? The two of
them?
COURT:
A When Salison brought Valmoria under the
mango tree, they were only 2 but later, alias
Sano, Fediles and alias Ondoy and alias
Jong-jong boxed Valmoria.
xxx xxx xxx
PROSECUTOR MANDALUPE:
Q In other words aside from accused Salison alias
Loloy who first boxed Rolando Valmoria,
other three persons joined Salison and also
boxed Rolando Valmoria?
A Yes, sir.
xxx xxx xxx
COURT:
Q Did you see the 3 come from the bushes? A
Yes, sir.
Q Where were you during the time when these
three appeared from the bushes?
A I was nearby because we were watching them.
Q Were you alone watching them or you had a
companion?
A I had some neighbors with me.
xxx xxx xxx
PROSECUTOR MANDALUPE:
Q After alias Sano, alias Jong-jong and alias
Ondoy joined Salison in boxing Rolando
Valmoria, what else did he do against the
person of Rolando Valmoria?
A Valmoria fought back and there was exchange
of fist(icuffs) and Loloy Salison, alias Ondoy
and alias Sano picked up some wooden
pieces of wood (sic).
Q After these three persons you mentioned
picked up wood, what did they do after
picking up the wood?
A They struck Valmoria with the piece of wood.
xxx xxx xxx
Q You said that you saw these 4 persons struck
Rolando Valmoria many times while still
under the mango tree. Can you tell the
Honorable Court what part of the body of
Rolando Valmoria was hit by the striking of
wood by the 4 accused, if you can recall?
A He was hit at his back and at the back of his
head.18
xxx xxx xxx
From the aforesaid testimony, these simultaneous attacks on
the victim proved the common intent of the accused to inflict
fatal blows upon the victim.
Direct proof is not essential to prove conspiracy. 19 A
conspiracy may be inferred without need of showing that the
parties actually came together and agreed in express terms
to enter into and pursue a common design.20 For collective
responsibility among the accused to be established, it is
sufficient that at the time of the aggression all of them acted
in concert each doing his part to fulfill their common purpose
to kill the victim.21
Even if there is no direct evidence showing that all of
the accused had a prior agreement on how to kill Valmoria,
the doctrine is well-settled that conspiracy need not be
proved by direct evidence of prior agreement to commit the
crime. Very seldom would such prior agreement be
demonstrable since, in the nature of things, criminal
undertakings are only rarely documented by agreements in
writing.22
It is equally a well-accepted corollary rule that where a
conspiracy has been established, evidence as to who among
the accused rendered the fatal blow is not necessary. All the
conspirators are liable as co-principals regardless of the
intent and the character of their participation, because the act
of one is the act of all.23
What further strengthens the case of the prosecution
was the declaration of Valmoria, made and signed by him
right after the incident, as to who were responsible for the
injuries he sustained. Appellant, however, maintains that said
written statement, which was reduced into writing by witness
Patricia Alcoseba and purporting to be a dying declaration, is
inadmissible as evidence since it was in the Cebuano
regional language and was not accompanied with a
translation in English or Pilipino.
However, as correctly observed by the Solicitor
General:
The records do not disclose that the defense offered any
objection to the admission of the declaration. Thus, the
defense waived whatever infirmity the document had at the
time of its submission as evidence. The declaration can be
translated into English or Pilipino as it is already admitted in
evidence and forms part of the record.24
Also, while such statement was given, as in the nature
of things they are generally in oral form, they are not thereby
rendered inadmissible as they may even be communicated
by means of signs. If the declarations have thereafter been
reduced to writing and signed by the declarant, the writing is
generally held to be the best evidence, and it must be
produced.25
More than once, this Court has taken into consideration
documents written in a Philippine dialect, unaccompanied by
the required translation but which had been admitted in
evidence without objection by the accused. 26 In those
instances, the Court merely ordered official translations to be
made. It is true that Section 33, Rule 132 of the revised Rules
of Court now prohibits the admission of such document in an
unofficial language but we believe that in the interest of
justice, such injunction should not be taken literally here,
especially since no objection thereto was interposed by
appellant, aside from the fact that appellant, the concerned
parties and the judicial authorities or personnel concerned
appeared to be familiar with or knowledgeable of Cebuano in
which the document was written. There was, therefore, no
prejudice caused to appellant and no reversible error was
committed by that lapse of the trial court.
Also, the written declaration was duly presented during
the trial and the person who reduced the victims declaration
into writing was thoroughly questioned by the court and the
prosecutor, and cross-examined by the defense counsel. The
witness was able to explain and discuss what was written in
the declaration and how she came to prepare the same.
Significantly, everything written in that declaration of the
victim was confirmed by the Governments eyewitnesses.
Appellants argument regarding the inadmissibility of the
declaration on a mere technicality would mean the loss of a
vital piece of evidence that could yield the true facts and give
retributive justice in the murder of Valmoria.
Appellant likewise argues that the declaration made by
the victim before the purok leader can not be considered as
a dying declaration because it was not made by the deceased
under the consciousness of an impending death. As earlier
narrated, at the time the deceased made the declaration he
was in great pain. He expressed a belief on his imminent
death and the hope that his declaration could be used as
evidence regarding the circumstances thereof. A person
would not say so if he believes he would recover and be able
to testify against his assailants. At all events, assuming that
declaration is not admissible as a dying declaration, it is still
admissible as part of the res gestae,27 since it was made
shortly after the startling incident and, under the
circumstances, the victim had no opportunity to contrive.
We are in conformity with the verdict of the lower court
finding appellant guilty of murder since the killing was
qualified by the circumstance of the accused having taken
advantage of their superior strength. The victim was unarmed
and defenseless at the time when all of the accused
mercilessly bludgeoned his back and head with big pieces of
wood. The number of assailants and the nature of the
weapons used against the hapless victim show a notorious
inequality of force between the latter and the aggressors,
assuring a superiority of strength advantageous to Salison
and his co-accused in the commission of the crime. The
accused purposely used excessive force out of proportion to
the means of defense available to the person attacked.28
Since no aggravating or mitigating circumstance was
present in the case at bar, the trial court correctly imposed
the penalty of reclusion perpetua, the same being the
medium period in the range of the imposable penalty.
PREMISES CONSIDERED, the assailed judgment of
the court a quo is hereby AFFIRMED in toto, with costs
against accused-appellant Rey Salison, Jr.
SO ORDERED.
Romero, Puno and Mendoza, JJ., concur.
S